1 BY ORDER OF 21 APRIL 1983 , RECEIVED AT THE COURT ON 18 MAY 1983 , THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY THREE QUESTIONS ON THE INTERPRETATION OF ARTICLE 6 ( 2 ) OF REGULATION ( EEC ) 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( I ), P . 234 ), IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION ( EEC ) NO 192/75 OF THE COMMISSION OF 17 JANUARY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF EXPORT REFUNDS IN RESPECT OF AGRICULTURAL PRODUCTS ( OFFICIAL JOURNAL 1975 L 25 , P . 1 ).
2 THE QUESTIONS WERE RAISED IN THE COURSE OF AN APPEAL ON A POINT OF LAW FROM A DECISION OF THE FINANZGERICHT ( FINANCE COURT ) HAMBURG ANNULLING A DECISION OF THE HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) HAMBURG-JONAS OF 27 FEBRUARY 1978 , AS CONFIRMED IN ITS DECISION OF 30 JANUARY 1979 , DEMANDING THE REPAYMENT OF SUMS PAID BY WAY OF VARIABLE REFUND ON THE EXPORT TO KUWAIT OF A SHIPMENT OF TINS CONTAINING FETA CHEESE IN BRINE .
3 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT THE HAUPTZOLLAMT DEMANDED REPAYMENT OF AN AMOUNT CORRESPONDING TO THE DIFFERENCE BETWEEN THE AMOUNT OF THE MINIMUM EXPORT REFUND IN FORCE AT THE TIME CUSTOMS EXPORT FORMALITIES WERE COMPLETED AND THE AMOUNT OF THE VARIABLE EXPORT REFUND ACTUALLY GRANTED , WHEN , AFTER AN INSPECTION CARRIED OUT AT THE PREMISES OF DIMEX NAHRUNGSMITTEL , IT LEARNED THAT ALTHOUGH THE GOODS HAD BEEN UNLOADED IN KUWAIT THEY HAD NOT ARRIVED ON THE MARKET OF THE COUNTRY OF DESTINATION , SINCE THEY HAD BEEN DECLARED UNFIT FOR HUMAN CONSUMPTION BY THE KUWAIT HEALTH AUTHORITIES AND HAD THEREFORE HAD TO BE DESTROYED OR RE-EXPORTED .
4 ACCORDING TO THE ORDER MAKING THE REFERENCE , THE MAIN GROUND GIVEN BY THE FINANZGERICHT FOR ITS ANNULMENT OF THAT DECISION WAS AS FOLLOWS : SINCE THE HAUPTZOLLAMT HAD ACCEPTED THAT CERTAIN OF THE DOCUMENTS REFERRED TO IN THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75 , IN PARTICULAR THE LANDING CERTIFICATE , COULD BE PRODUCED INSTEAD OF THE CUSTOMS DOCUMENT AND AS EQUIVALENT PROOF , IRREBUTABLE PROOF HAD BEEN FURNISHED THAT THE GOODS HAD REACHED THE DESTINATION FOR WHICH THE REFUND WAS GRANTED . THE FINANZGERICHT HELD THAT IT WAS NOT POSSIBLE TO REQUIRE IN ADDITION PROOF THAT THE GOODS HAD BEEN MARKETED IN THE NON-MEMBER COUNTRY .
5 IT IS AGAINST THAT BACKGROUND THAT THE BUNDESFINANZHOF HAS REFERRED THE FOLLOWING QUESTIONS TO THE COURT :
' ' 1 . MUST THE PROOF REQUIRED BY ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 THAT THE PRODUCT HAS BEEN IMPORTED INTO THE TERRITORY OF DESTINATION BE REGARDED AS HAVING BEEN FURNISHED IRREBUTTABLY IF THE PERSON CONCERNED HAS SUBMITTED A SUBSTITUTE DOCUMENT REQUESTED BY THE RESPONSIBLE AUTHORITY UNDER THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75?
2 . IF THE FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE : IS THAT ALSO THE CASE WHERE THE RESPONSIBLE AUTHORITY HAS REQUESTED THE PRODUCTION OF THE SUBSTITUTE DOCUMENT AND IT THEN EMERGES THAT IT WAS NOT A CASE IN WHICH PROOF OF COMPLETION OF THE CUSTOMS FORMALITIES WITHIN THE MEANING OF THE SECOND SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75 COULD NOT BE FURNISHED ' OWING TO CIRCUMSTANCES BEYOND THE CONTROL OF THE IMPORTER ' ( THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75)? HOW OUGHT THE LAST-MENTIONED WORDS OF THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75 ) TO BE INTERPRETED?
3 . IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE : HAS A PRODUCT BEEN ' IMPORTED ' INTO THE TERRITORY OF DESTINATION WITHIN THE MEANING OF ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 WHERE A FEW DAYS AFTER UNLOADING IN THAT TERRITORY IT HAS BEEN EITHER DESTROYED OR RE-EXPORTED? DOES THE ANSWER DEPEND ON WHETHER THE PRODUCT HAS BEEN DESTROYED OR RE-EXPORTED BEFORE OR AFTER BEING CLEARED FOR ENTRY INTO FREE CIRCULATION IN THAT TERRITORY AND WHETHER THE DETERIORATION OF THE GOODS WHICH WAS THE CAUSE OF THE DESTRUCTION OR RE-EXPORTATION OCCURRED BEFORE OR AFTER SUCH CLEARANCE?
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( A ) THE FIRST QUESTION
6 IN ITS FIRST QUESTION , THE NATIONAL COURT ASKS IN SUBSTANCE WHETHER THE PROOF REQUIRED BY ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 , IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 , THAT THE PRODUCT HAS BEEN IMPORTED INTO THE TERRITORY OF DESTINATION MUST BE REGARDED AS HAVING BEEN FURNISHED IRREBUTTABLY IF THE PERSON CONCERNED HAS SUBMITTED , INSTEAD OF THE CUSTOMS DOCUMENT REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75 , ONE OF THE DOCUMENTS LISTED IN THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) AND IN PARTICULAR THE LANDING CERTIFICATE .
7 ACCORDING TO THE NATIONAL COURT , THE WORDING OF THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75 , IN CONJUNCTION WITH SUBPARAGRAPH ( 2 ) AND THE PHRASE ' ' SHALL BE CONSIDERED ' ' USED IN IT , MIGHT SUGGEST THAT THE REPLY TO THAT QUESTION SHOULD BE IN THE AFFIRMATIVE . IN ITS VIEW , HOWEVER , THAT PROVISION COULD EQUALLY BE INTERPRETED AS MEANING THAT THE DOCUMENTS SUBMITTED AMOUNT ONLY TO REBUTTABLE EVIDENCE THAT THE GOODS HAVE BEEN IMPORTED INTO THE NON-MEMBER COUNTRY .
8 IT SHOULD FIRST BE NOTED IN THAT REGARD THAT , AS THE COURT POINTED OUT IN ITS JUDGMENT OF 2 JUNE 1976 ( CASE 125/75 , EIER-KONTOR , ( 1976 ) ECR 771 ), THE SYSTEM OF VARIABLE EXPORT REFUNDS IS INTENDED TO GAIN AND MAINTAIN ACCESS FOR COMMUNITY EXPORTS TO THE MARKETS OF THE NON-MEMBER COUNTRIES CONCERNED AND THE VARIATION IN THE REFUND IS BASED ON THE DESIRE TO TAKE ACCOUNT OF THE PARTICULAR CHARACTERISTICS OF EACH IMPORT MARKET IN WHICH THE COMMUNITY WISHES TO PLAY A PART .
9 IN THE ABOVE-MENTIONED JUDGMENT AND IN LATER JUDGMENTS ( SEE IN PARTICULAR THE JUDGMENT OF 2 . 3 . 1977 IN CASE 44/76 , EIER-KONTOR , ( 1977 ) ECR 393 ), THE COURT HELD THAT IF IT SUFFICED , IN ORDER TO QUALIFY FOR PAYMENT OF THE REFUND AT A HIGHER RATE , FOR THE GOODS SIMPLY TO BE UNLOADED , WITHOUT REACHING THE MARKET OF THE TERRITORY OF DESTINATION , THE RAISON D ' ETRE OF THE SYSTEM OF VARYING THE REFUND WOULD BE DISREGARDED .
10 THAT IS MOREOVER THE REASON WHY THE SECOND SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75 MAKES PAYMENT OF THE VARIABLE REFUND SUBJECT TO THE COMPLETION OF CUSTOMS FORMALITIES FOR ENTRY INTO FREE CIRCULATION IN THE NON-MEMBER COUNTRY , SINCE THE COMPLETION OF THOSE FORMALITIES IS NORMALLY SUFFICIENT TO ENSURE THAT THE GOODS HAVE ACTUAL ACCESS TO THE MARKET OF THE TERRITORY OF DESTINATION .
11 THE FACT THAT THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF THE REGULATION PERMITS THE COMPETENT AUTHORITIES TO REQUIRE OTHER DOCUMENTS WHEN THEY CONSIDER , IN VIEW OF THE PARTICULAR CIRCUMSTANCES IN THE COUNTRY OF DESTINATION , THAT PROOF OF COMPLETION OF CUSTOMS FORMALITIES IS INSUFFICIENT SHOWS THAT SUCH PROOF AMOUNTS ONLY TO REBUTTABLE EVIDENCE THAT THE OBJECTIVE OF THE VARIABLE EXPORT REFUNDS HAS IN FACT BEEN ATTAINED .
12 AS THE COMMISSION CORRECTLY POINTED OUT , THAT FACT IMPLIES A FORTIORI THAT THE DOCUMENTS SUCH AS THE LANDING CERTIFICATE AND THE BANK DOCUMENT REFERRED TO IN THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) WHICH ARE SUBMITTED IN LIEU OF THE CUSTOMS DOCUMENT ARE THEMSELVES NO MORE THAN REBUTTABLE EVIDENCE SINCE , UNLIKE COMPLETION OF CUSTOMS FORMALITIES , THEY DO NOT EVEN ENSURE THAT THE GOODS HAVE ACCESS TO THE MARKET OF DESTINATION .
13 THE ANSWER TO THE FIRST QUESTION MUST THEREFORE BE THAT THE PROOF REQUIRED BY ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 , IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 , THAT THE PRODUCT HAS BEEN IMPORTED INTO THE TERRITORY OF DESTINATION IS NOT FURNISHED IRREBUTTABLY WHERE THE DOCUMENTS LISTED IN THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75 ARE PRODUCED IN PLACE OF THE CUSTOMS DOCUMENT AUTHORIZING ENTRY INTO FREE CIRCULATION .
( B ) THE SECOND QUESTION
14 SINCE THE SECOND QUESTION WAS PUT ONLY IN THE EVENT OF THE FIRST QUESTION BEING ANSWERED IN THE AFFIRMATIVE , THERE IS NO NEED TO REPLY TO IT .
( C ) THE THIRD QUESTION
15 IN ITS THIRD QUESTION , THE NATIONAL COURT ASKS WHETHER A PRODUCT CAN BE REGARDED AS HAVING BEEN ' ' IMPORTED ' ' INTO THE TERRITORY OF DESTINATION WITHIN THE MEANING OF ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 , IF IT WAS DESTROYED OR RE-EXPORTED WITHIN A FEW DAYS OF BEING UNLOADED IN THAT TERRITORY . IT ASKS FURTHER WHETHER THE ANSWER DEPENDS ON WHETHER THE PRODUCT WAS DESTROYED OR RE-EXPORTED BEFORE OR AFTER BEING CLEARED FOR ENTRY INTO FREE CIRCULATION IN THAT TERRITORY AND WHETHER THE DETERIORATION OF THE GOODS WHICH WAS THE CASE OF THE DESTRUCTION OR RE-EXPORTATION OCCURRED BEFORE OR AFTER SUCH CLEARANCE .
16 IT FOLLOWS FROM THE CONSIDERATIONS SET OUT BELOW THAT , IN VIEW OF THE OBJECTIVES OF THE SYSTEM OF VARIABLE REFUNDS , IT IS ESSENTIAL THAT PRODUCTS SUBSIDIZED BY SUCH REFUNDS SHOULD ACTUALLY REACH THE MARKET OF DESTINATION AND BE MARKETED THERE .
17 SINCE ACTUAL ACCESS TO THE MARKET OF DESTINATION IS GENERALLY SUBJECT TO THE COMPLETION OF FORMALITIES FOR RELEASE INTO FREE CIRCULATION IN THE COUNTRY OF DESTINATION , THE FACT THAT THE PRODUCT IS DESTROYED OR RE-EXPORTED BEFORE BEING RELEASED INTO FREE CIRCULATION MEANS THAT IT CANNOT , FOR THE PURPOSE OF THE PAYMENT OF THE VARIABLE REFUND , BE REGARDED AS HAVING BEEN IMPORTED WITHIN THE MEANING OF ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 AND ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 .
18 THE SAME IS TRUE WHERE THE DESTRUCTION OR RE-EXPORTATION TAKES PLACE AFTER THE COMPLETION , IN THE COUNTRY OF DESTINATION , OF THE FORMALITIES PRESCRIBED BY THAT STATE AS A PRECONDITION FOR THE ENTRY INTO FREE CIRCULATION OR MARKETING OF THE PRODUCT WITHIN ITS TERRITORY , IN SO FAR AS THE DESTRUCTION OR RE-EXPORTATION OF THE PRODUCT WAS THE RESULT OF DECISIONS TAKEN BY THE COMPETENT AUTHORITIES OF THE STATE OF DESTINATION ON COMPLETION OF THOSE FORMALITIES AND THE DETERIORATION WHICH WAS THE CAUSE OF THE DESTRUCTION OR RE-EXPORTATION OCCURRED BEFORE THEIR COMPLETION . IN THAT CAUSE , TOO , ACTUAL ACCESS TO THE MARKET OF DESTINATION IS NOT POSSIBLE .
19 FOR THOSE REASONS , THE ANSWER TO THE THIRD QUESTION MUST BE THAT A PRODUCT WHICH HAS HAD TO BE DESTROYED OR RE-EXPORTED AFTER BEING UNLOADED IN THE TERRITORY OF DESTINATION CANNOT BE REGARDED AS HAVING BEEN IMPORTED WITHIN THE MEANING OF ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 , IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 , WHERE ITS DESTRUCTION OR ITS RE-EXPOR TATION WAS A RESULT OF DECISIONS TAKEN BY THE COMPETENT AUTHORITIES OF THE STATE OF DESTINATION ON COMPLETION OF THE FORMALITIES PRESCRIBED BY THAT STATE AS A PRECONDITION FOR THE ENTRY INTO FREE CIRCULATION OR MARKETING OF THE PRODUCT WITHIN ITS TERRITORY AND WHERE THE DETERIORATION OF THE PRODUCT WHICH WAS THE CAUSE OF ITS DESTRUCTION OR RE-EXPORTATION OCCURRED BEFORE COMPLETION OF THOSE FORMALITIES .
COSTS
20 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF 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 ( FOURTH CHAMBER ),
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE BUNDESFINANZHOF BY ORDER OF 21 APRIL 1983 , HEREBY RULES :
1 . THE PROOF REQUIRED BY ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 , IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 , THAT THE PRODUCT HAS BEEN IMPORTED INTO THE TERRITORY OF DESTINATION IS NOT FURNISHED IRREBUTTABLY WHERE THE DOCUMENTS LISTED IN THE THIRD SUBPARAGRAPH OF ARTICLE 11 ( 1 ) OF REGULATION NO 192/75 ARE PRODUCED IN PLACE OF THE CUSTOMS DOCUMENT AUTHORIZING ENTRY INTO CIRCULATION .
2 . A PRODUCT WHICH HAS HAD TO BE DESTROYED OR RE-EXPORTED AFTER BEING UNLOADED IN THE TERRITORY OF DESTINATION CANNOT BE REGARDED AS HAVING BEEN IMPORTED WITHIN THE MEANING OF ARTICLE 6 ( 2 ) OF REGULATION NO 876/68 , IN CONJUNCTION WITH ARTICLE 6 ( 1 ) OF REGULATION NO 192/75 , WHERE ITS DESTRUCTION OR ITS RE-EXPORTATION WAS A RESULT OF DECISIONS TAKEN BY THE COMPETENT AUTHORITIES OF THE STATE OF DESTINATION ON COMPLETION OF THE FORMALITIES PRESCRIBED BY THAT STATE AS A PRE-CONDITION FOR THE ENTRY INTO FREE CIRCULATION OR MARKETING OF THE PRODUCT WITHIN ITS TERRITORY AND WHERE THE DETERIORATION OF THE PRODUCT WHICH WAS THE CAUSE OF ITS DESTRUCTION OR RE-EXPORTATION OCCURRED BEFORE COMPLETION OF THOSE FORMALITIES .
