OPINION OF ADVOCATE GENERAL

delivered on 17 February 1993 (*1)

Mr President,

Members of the Court,

1.By the present action the Federal Republic of Germany seeks partial annulment of the Commission decision of 30 November 1990 (C (90) 2337 final) on the clearance of the accounts of the Member States in respect of the expenditure for 1988 of the European Agricultural Guidance and Guarantee Fund (EAGGF), Guarantee Section, for the financial year 1988. (1)

According to that decision, the checks carried out by Commission staff disclosed that some of the expenditure declared by Germany for the year in question did not satisfy the conditions laid down by the Community rules and could not therefore be charged to the EAGGF.

2.The specific causes of the irregularities of each transaction were, as usual, made in clear in bilateral contacts preceding the decision on the clearance of accounts and were subsequently set out in a summary report forwarded to the German authorities.

In the course of the written procedure, the applicant withdrew some of its claims and the parties reached agreement regarding export refunds in the sugar and cereals sectors, the aspect of the dispute on which the observations of the French Government, as intervener, were concentrated.

Against that background, I shall now consider the remaining matters in dispute.

A — Absence of export licences: DM 104909.63 (paragraph 4.1.3.2 of the summary report)

3.The German Government takes exception, first, to the statement in the summary report to the effect that a financial adjustment was made necessary by the export of a quantity of intervention cereals set against the tolerance erroneously granted on an export refund advance-fixing certificate. The German Government contends in particular that it had no knowledge of any such case and that in any event the decision on the matter did not contain an adequate statement of the grounds on which it was based.

Following clarifications provided by the Commission in its defence, the German Government now recognizes that in fact the export licence in question erroneously allowed a tolerance, but adds that, as demonstrated by a number of documents produced in the course of the proceedings, a subsequent amendment rectified the error.

4.As regards the alleged inadequacy of the statement of reasons, I would point out first of all that, according to settled case-law, the scope of the obligation to state reasons laid down in Article 190 of the EEC Treaty depends on the nature of the measure in question and the circumstances in which it was adopted; in particular, a decision on the clearance of the accounts in respect of expenditure financed by the EAGGF, refusing to charge to the latter part of the expenditure declared, does not call for a detailed statement of reasons since the government involved was closely associated with the process of drawing up the decision and should therefore know the reasons for which the Commission considers that a particular amount cannot be charged to the EAGGF. (2)

5.However, as is apparent from the documents before the Court (see Annexes 1 and 2 to Chapter III of the defence), the transaction at issue involved the export to the Soviet Union of cereals stored in intervention agencies' warehouses; the attention of the German authorities was drawn to the transaction on several occasions, the number of the contested document being specifically indicated. In particular, by letter of 23 May 1990, the Commission stated that it considered that the tolerance of 1500000 kg allowed on licence No 239195065 was unjustified.

The applicant cannot therefore complain of an inadequate statement of reasons for the contested decision: in view of the earlier correspondence, it should have been in a position to identify the infringement of the Community provisions to which the Commission referred.

6.Nor, in my opinion, may the Court examine the evidence produced in the course of the proceedings to justify the transaction at issue. If, as indicated earlier, the Commission objected in due time to the infringement of the Community legislation by the German authorities, the latter could and should have presented the relevant documents before 30 June 1990, the deadline set by the Commission pursuant to Article 1(3) of Commission Regulation (EEC) No 1723/72 on making up accounts for the European Agricultural Guidance and Guarantee Fund, Guarantee Section. (3)

The plea in law regarding the lack of export licences must therefore be rejected.

B — Exports for which the declaration was presented only after the goods had left Community territory: DM 18037338.54 (paragraph 4.1.3.3 of the summary report)

7.The German Government contests the Commission's statements to the effect that on various occasions export refunds were granted even though the declarations relating to them were presented to the competent customs offices only after the vessels had proceeded to sea, thereby making it impossible for the necessary checks to be carried out.

The applicant adds that, although it is true that in some cases the control copies were submitted late, that was because the goods, being intervention cereals or cereals held in store under the refund advance-fixing procedure, had already undergone a customs check.

8.A few details of the legislation governing the Community export procedure will help to clarify the point at issue.

Pursuant to Council Directive 81/177/EEC on the harmonization of procedures for the export of Community goods (4) ‘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’ (Article 2). That declaration is to ‘be made in writing on a form corresponding to the appropriate official model’ (Article 3) and ‘the goods to be exported shall be presented at any Community customs office’ (Article 5(1)).

The declaration may be lodged as soon as the goods have been presented to the customs office. However, the latter may ‘authorize the declaration to be lodged before the declarant is in a position to present the goods’ (Article 5(2)).

Pursuant to Article 3 of Commission Regulation No 3665/87 of 27 November 1987 laying down common detailed rules for the application of the system of export refunds on agricultural products (5) the document used must include all information necessary for the calculation of the amount of the refund and, in addition, 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.

9.As the Commission correctly points out, it is clear from those provisions, first, that an export declaration must be made in writing, in particular so that the information provided by the exporter can be checked against the goods presented for export; and, secondly, that the declaration may be lodged before the goods are presented but certainly not after they have left the customs territory.

10.As is apparent from the report of 4 May 1990 from the Oldenburg Principal Customs Office (annexed to Chapter IV of the Commission's defence), in the cases objected to by the Commission the export procedure was not carried out with the requisite diligence. And indeed, as far as the export declarations accepted on 30 March 1988 are concerned, it appears that the five control copies at issue were not drawn up until the day after the vessel had sailed and that the goods had not undergone any check as to quantity and specifications. Moreover, in the report it is merely assumed that the prescribed declaration was made before commencement of the loading operations.

Similarly, in the case of the export declarations of 25 January 1988, it is clear, again from the abovementioned report, that although the vessel *Tenoch* left the port of Nordenham on 2 January 1988, the control copy was not registered and issued until 25 January 1988; furthermore, the official responsible for customs clearance did not inspect the goods exported and the principal customs office merely assumed, in that case too, that a declaration had been made orally or by telephone in due time for the purpose of complying with the customs formalities. Finally, it seems that a partial shipment of flour and a shipment of rye, although not transshipped for weighing, were entered on a weighing certificate by a member of the auxiliary customs staff.

11.In view of those irregularities and the lack of reliable evidence to show that the prescribed export declaration was submitted in due time, it would not seem that much credence can be attached to the German Government's statement that the exported products were in fact declared before loading commenced; nor is there any basis in Community law for the applicant's contention that a check was unnecessary because the goods concerned were cereals in the warehouses of the intervention agencies.

The plea in law concerning that aspect of the contested decision must therefore also fail.

C — Date of acceptance of the export declaration by the customs authorities: DM 251803.64 (paragraph 4.1.3.5 of the summary report)

12.The German Government challenges the Commission's statement that the German customs administration's practice of allowing traders to choose the date of acceptance of the export declaration, and thereby the rate of refund, is contrary to Community law. According to the applicant, the Community legislation does not indicate which day is to be treated as the date of acceptance of the export declaration.

13.Let me say immediately that, contrary to the applicant's assertion, it does not seem to me that the relevant Community legislation allows the customs authorities, still less traders, to choose the date of acceptance of the export declaration.

14.Pursuant to Directive 81/177/EEC, the competent authorities must be informed in the prescribed manner that the goods are present in a customs office or other place designated by them (Article 5(3)) and the requisite notification involves lodging the declaration at the customs office at which the goods have been presented (Article 5(1) and (2)).

Furthermore, it is laid down that declarations meeting the prescribed conditions are to be accepted by the customs authorities forthwith in accordance with the procedures laid down in each Member State (Article 6(1)).

15.It is apparent from those provisions that the export declaration must be accepted as soon as it has been checked as regards form, content and conformity with the goods to be exported.

However, as the Commission rightly points out, such a check is materially impossible where some of the goods are still in the silos or in a vehicle on land or even have already been loaded onto a ship. In fact, the check must be carried out immediately before loading and therefore, since the export declaration must be accepted forthwith after completion of the check, acceptance must take place immediately before loading or shortly after it has started.

That plea in law must therefore also fail.

D — Production refunds for starch and sugar: DM 6200360.76 (paragraphs 4.2.4.1 and 4.5.1.4 of the summary report)

16.The German Government challenges the Commission's statement that the administrative procedure followed by the German authorities regarding those products makes physical checks impossible and, more generally, 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 (6) and Regulation 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. (7)

According to the applicant, those two regulations do not require physical checks to be carried out but leave the national authorities to decide on the detailed arrangements for checks. In its view, therefore, a procedure under which an export refund may be applied for and a guarantee may be provided after processing of the product is lawful.

17.Contrary to the view expressed by the German Government, it seems to me that a procedure of that kind is not in conformity with either the spirit or the letter of the relevant Community provisions.

As is apparent from the preamble to the two regulations in question, export refunds cannot be granted in the absence of detailed information. (8) To that end, Article 4 of Regulation No 2169/86 and Article 2 of Regulation No 1729/78 provide that a manufacturer wishing to claim a production refund must apply in writing to the competent authorities indicating in particular the quantity and the nature of the products to be processed and the place where processing is to take place. Also, for the purposes of the control procedure, further details have to be notified to the competent authority so that it can carry out the necessary checks (Article 8(1) of Regulation No 2169/86 and Article 6(2) of Regulation No 1729/78).

18.The German procedure, which allows the application for a refund to be lodged after processing, seems clearly to run counter to the abovementioned provisions and also makes it impossible for any physical checks of the goods to be carried out.

Regarding the latter aspect, I would point out that, as is expressly stated in Article 8(2) of Regulation No 2169/86 and is implied by the provisions of Regulation No 1729/78 concerning the control procedure, even if the check is usually carried out by means of administrative controls, the competent authorities must, when they consider it necessary, be in a position to inspect the goods physically.

19.In fact, as is apparent in particular from the applicant's reply, the German Government appears to concede that that procedure does not meet the requirements of the abovementioned provisions; it stresses, however, that the course of action followed is consonant with the spirit of the Community legislation and also ensures that the controls are effective.

The applicant adds that the system of controls that the Commission seeks to have applied is liable to place obstacles in the way of the continuity and regularity of production, encouraging the processing industry to have ever greater recourse to starch and sugar from countries where the supervisory conditions are less rigorous.

20.In that connection, and without considering the merits of the applicant's assertions, I shall merely observe, first, that it is settled law that where a regulation lays down specific control measures, the Member States are required to apply them, there being no need to consider the soundness of their arguments that a different supervision system would be more effective, (9) and, secondly, that the Member States cannot seek to justify practices contrary to Community legislation by criticizing the appropriateness of that legislation.

That plea in law must, in my opinion, also fail.

Costs

21.The German Government abandoned its pleas concerning export refunds in the cereals and sugar sectors following the adoption of Commission Decision 91/583/EEC of 31 October 1991, (10) which charged the amounts at issue to the EAGGF. However, it claims that the costs concerning that matter should be paid by the Commission since the contested refunds were in fact correctly granted *ab initio.*

That claim, which the Commission contests, cannot in my view be upheld. As is apparent from the recitals of the contested decision and of Decision 91/583/EEC, the Commission expressly reserved the right to review its refusal in the event of the Member State concerned carrying out a further check of the expenditure in question and providing evidence removing any doubt as to the justification for the refunds declared.

22.In the light of the foregoing considerations, I therefore suggest that the Court:

(1)dismiss the action;

(2)order the Federal Republic of Germany to pay the costs;

(3)order the French Republic to bear the costs of its intervention.

(*1) Original language: Italian.

(1)

Published as Decision 90/644/EEC, OJ 1990 L 350, p. 82.

(2) Case 819/79 Germany v Commission [1981] ECR 21, paragraphs 19 to 21.

(3) OJ, English Special Edition, Second Series, Part III, p. 109. The paragraph referred to was added by Commission Regulation (EEC) No 422/86 (OJ 1986 L 48, p. 31). See also the judgment in Case C-197/90 Italy v Commission [1992] ECR I-1.

(4) OJ 1981 L 83. p. 40.

(5) OJ 1987 L 351, p. 1.

(6) OJ 1986 L 189, p. 12.

(7) OJ 1978 L 201, p. 26.

(8) See the third recital in the preamble to both Regulation No 1729/78 and Regulation No 2169/86.

(9) Case 819/79 Germany v Commission, cited above, paragraph 10. 10 — OJ 1991 L 314, p. 47.

(10) OJ 1991 L 314, p. 47.