OPINION OF MR ADVOCATE-GENERAL ROEMER

DELIVERED ON 4 MAY 1972 (*1)

Mr President,

Members of the Court,

Like other common organizations of the market the common organization of the market in sugar established by Regulation No 1009/67 of the Council of 18 December 1967 (OJ English Special Edition 1967, p. 304) provides by its common system of prices for a uniformly applicable system of trading at the outer frontiers of the Community. Under this system levies are charged on sugar imports and provision is made for the payment of a refund on sugar exported to third countries. As regards the refund Article 17 of the regulation, so far as is relevant to the present case, reads: ‘To the extent necessary to enable the products listed in Article 1(1) (a), (c) and (d) (including white sugar) to be exported … on the basis of quotations or prices listed in Article 1(1) (a) and (c) on the world market, the difference between those quotations or prices and prices within the Community may be covered by an export refund. The refund shall be the same for the whole Community. It may be varied according to use or destination. The refund shall be granted on application by the person concerned’.

Regulation (EEC) No 766/68 of the Council of 18 June 1968 (OJ English Special Edition 1968, p. 155) lays down general rules ‘for granting export refunds on sugar’. Under Article 11 of this regulation ‘If the refund is not fixed by tender, the amount of the refund or the basic amount of the refund in force on the day of exportation shall be applied’. Article 14(1) states: ‘The refund shall be paid upon proof that the products have been exported from the Community’. Further, Article 15 provides inter alia that ‘No export refund shall be granted on the products listed in Article l(l)(a) and (c) of Regulation No 1009/67/ EEC unless they have been produced from sugar beet or sugar cane harvested within the Community’.

Furthermore Regulation No 1041/67 of the Commission of 21 December 1967 (OJ English Special Edition 1967, p. 323) ‘on detailed rules for the application of export refunds on products subject to a single price system’ is relevant. Article 1 (1) of this regulation provides that for the purposes of determining the rate of the refund ‘the date of exportation shall be the day on which the customs authority accepts the document by which the declarant states his intention to export the products in question and qualify for a refund’. Paragraph 2 of this article provides that ‘For the purposes of this regulation, acceptance of the document referred to in paragraph 1 shall be considered to be the completion of the customs export formalities’. According to Article 3 ‘The refund shall be paid only upon proof that the product in respect of which customs formalities have been completed has left the geographical territory of the Community unaltered, in the case referred to in Article 1, or has reached its destination unaltered, in the cases mentioned in Article 2’. If a product for which customs formalities have been completed, before leaving the geographical territory of the Community or before reaching one of the destinations listed in Article 2 of Regulation No 1041/67, crosses Community territory other than that of the Member State in whose territory such formalities took place, Article 5 provides that ‘proof that the product has left the geographical territory of the Community or reached the intended destination shall, pending the introduction of a Community transit system, be furnished in the form of an exit certificate, the model of which is shown in the Annex’. Article 5 continues ‘This certificate, bearing a serial number, shall be issued at least in duplicate by the customs office where the customs export formalities are completed. The original of the certificate shall be issued to the exporter and the copy shall be kept by the customs office of exit or sent directly by that office to the authority responsible for paying the refund. The exporter's copy shall accompany the goods. It shall be endorsed by the intermediate customs offices where the goods have to be presented and by the customs office of exit from the Community or by the office certifying that the product has reached its destination in the cases referred to in Article 2. It shall then, within eight days following the last endorsement, be returned by the office concerned to the national authority shown in the certificate heading’. The refund — as Article 10 in addition provides—‘shall be paid by the Member State in whose territory the customs export formalities were concluded’. Under Article 10(2) of this Article as amended by Regulation No 499/69 of the Commission of 17 March 1969 (OJ English Special Edition 1969, p. 114) ‘The time-limit for claiming payment of the refund shall be 6 months following the day on which the customs export formalities were completed except in cases of force majeure’. Finally mention must be made of the fact that in the Federal Republic of Germany special implementing provisions were adopted under the Verordnung Ausfuhrerstattungen EWG (Regulation relating to EEC export refunds) of 24 January 1968, which was amended by a regulation of 3 August 1968. Paragraph 3 of this regulation provides that the customs offices authorized to pay the refund are those designated by the Federal Minister for Finance. Under an order of 27 August 1968 the only office designated was the Hauptzollamt (Principal Customs Office) Hamburg-Jonas. By virtue of paragraph 6 of the said regulation ‘the application for a refund … must be lodged with the competent customs office in the prescribed form’.

These provisions are also of concern to the firm of Schlüter & Maack, the plaintiff in the main action. On 2 October 1968 it asked the Uelzen customs office, a forwarding office, for customs clearance for the export of a quantity of sugar intended for victualling sea-going vessels of an Italian shipping company. The goods were described in the exit certificate issued under Article 5 of Regulation No 1041 as ‘white sugar, solid, not denatured, produced from sugar beet harvested within the Community, sucrose content not less than 99.5 %, tariff heading 17.01 A’. In Part A of the exit certificate, which was intended for the Hauptzollamt Hamburg-Jonas, the office responsible for granting the refunds, the exporting firm declared on 30 September 1968 that the goods were the subject of an export licence issued by the Federal Republic of Germany and were to be delivered to Genoa, Italy (free port). The certificate then goes on to say: ‘I certify that these goods qualify for an export refund’. On 1 April 1969 a customs office in Genoa certified in Part E of the certificate that the goods left Community territory on 12 February 1969. On 28 May 1969 the Hauptzollamt Hamburg-Jonas, the German office responsible for granting refunds, received an application by the firm Schlüter & Maack, for an export refund on the consignment for export which I have just described. It was dated 9 October 1968, headed ‘2nd copy’ and was endorsed ‘duplicate prepared 23/5/69’.

This application was, however, refused by a decision of the Hauptzollamt of 20 October 1969. The reasons for the refusal were that it had not received the application dated 9 October 1969 and that the application for a refund prepared on 23 May 1969 only arrived after the expiration of the six months' period prescribed by Article 10 of Regulation No 1041/67 which began to run on completion of the customs export formalities on 2 October 1968.

Schlüter & Maack lodged an objection against this decision. It submitted that the proper construction of Article 7 of Regulation No 499/69 is that the period mentioned by the Hauptzollamt only begins to run from the date when the last customs export formality has been completed, in the present case from the date when the customs office in Genoa completed the endorsement that the sugar in question had left the geographical territory of the Community. It also submitted that there was a case of force majeure within the meaning of Article 7 of Regulation No 499/69, because the application of 9 October had in fact been despatched and must have been mislaid somewhere through no fault of the exporter.

However the objection failed. It was dismissed on the ground that under Article 1 of Regulation No 1041/67 acceptance of the document ‘by which the declarant states his intention to export the products in question and qualify for a refund’ is treated as completion of the customs export formalities. It is therefore quite clear that the limitation period began to run on 3 October 1968. As under Article 17 of Regulation No 1009/67 the refund shall only be granted on application by the person concerned, the application must be included in the documents which must be lodged in support of the claim for payment of the refund with the competent customs office within the period prescribed by Article 10 of Regulation No 1041. There are no grounds for accepting the existence of force majeure, because it is particularly important to remember that there can only be force majeure if the limitation could not be complied with owing to technical administrative delays for which the person concerned cannot be blamed.

Schlüter & Maack appealed against this decision to the Finanzgericht Hamburg. In the grounds of appeal it pointed out in particular that the national authority empowered to make regulations was not entitled to introduce the requirement of a written application in addition to the requirements laid down by the provisions of Community law. Since the recital expressly referring to Article 7 of Regulation No 499/69 states that that article must be applied with flexibility, there can also be force majeure if there are circumstances for which the exporter is not responsible, for example if the loss of an application which has been despatched in the proper manner is not his fault. In answer to this argument the defendant Hauptzollamt submits, as it did before, that for the reasons which have already been given no application for a refund was in fact made. With regard to the question of force majeure the Hauptzollamt also submitted during the proceedings that the plaintiff has not proved that it despatched the application on 9 October 1968.

In view of this dispute which includes questions of Community law the Finanzgericht by its order of 22 October 1971 stayed the proceedings and referred the following questions for a preliminary ruling:

(1)Is the application for a refund which has to be made under Article 17(2) of Regulation No 1009/67 (OJ English Special Edition 1967, p. 304,) identical with the declaration which the exporter must make under Article 1 (1) of Regulation No 1041/67 (OJ English Special Edition 1967, p. 323)?

If not,

(2)Must the application for a refund which has to be lodged in these circumstances, in addition to the declaration under Article 1(1) of Regulation No 1041/67 made orally or in writing? If it must be made in writing,

(3)Is it one of the documents to be lodged envisaged in Article 10(2) of Regulation No 1041/67?

If so,

(4)What is meant by force majeure in Article 10(2) of Regulation No 1041/67 in the version contained in Regulation No 499/69 (OJ English Special Edition 1969(1), p. 114)?

I will now consider what answers to these questions appear to be appropriate after taking note of the written and oral submissions of the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities.

I must first of all examine an objection raised by the Federal German Government on the question whether the answers to these questions are relevant to the decision to be made by the Finanzgericht. We know that the Federal German Government has submitted that the plaintiff did not lodge the declaration provided for by Article 7 of Regulation No 1041 to the effect that the exported sugar was produced from sugar beet harvested in the Community until after the expiry of the period laid down by Article 10. Its claim for a refund must, it is said, for this reason be rejected and there is consequently no need to consider the questions referred by the Finanzgericht.

In this connexion it must, however, be noted that hitherto the Court has a matter of principle refused to consider whether the questions referred to it are relevant to the decision to be made by the national court. It was only in Case 13/68 (Salgoil, [1968] ECR 453) that the Court indicated that there is an exception to this principle in so far as this case mentioned that the quotation of a provision by the court making the reference could be incorrect on the face of it.

If this maxim is adhered to, it follows that the conclusion proposed by the Federal German Government can in fact hardly be accepted. During the oral proceedings the plaintiff emphatically stressed that all the necessary documents, including a declaration of the origin of the goods, were lodged with the Hauptzollamt. In any case, according to the plaintiff, the necessary particulars were contained in the exit certificate which I have already mentioned, because it included the certificate that the goods qualify for an export refund. Consequently I am bound to conclude that the point taken by the Federal German Government is at least disputed and unclear and that on the other hand there is no evidence at all of any patent error in the sense of the judgment which I have mentioned.

Moreover it is quite possible that the Finanzgericht, on the basis of the plaintiff's argument, considers the view to be tenable that the declarations as to the origin of the goods contained in the exit certificate are sufficient and that it framed its questions with special reference to this point. Further — even if the declaration as to the origin of the goods was lodged out of time — the possibility cannot be rules out that, at least in this connexion, the request for clarification of the concept of ‘force majeure’ is relevant.

I am therefore of the opinion that the Court should disregard the objection raised by the Federal German Government and not decline to answer the questions on the ground that they have no relevance to the decision which must be taken in the national proceedings.

In the first question the Court is asked to decide whether the declaration under Article 1 of Regulation No 1041, that is to say, the document produced to the customs office through which the goods are cleared, ‘by which the declarant states his intention to export the products in question and qualify for a refund’ can be treated as the necessary application for the grant of a refund under Article 17 of Regulation No 1009. In this connexion, having regard to the facts set out in and the grounds of the order making the reference some further clarification of the problem must first be achieved. We have seen that, if goods are exported under Article 5 of Regulation No 1041, that is to say, if they cross other Community territory, an exit certificate is received by the customs office of exit in which the exporter certifies that ‘the goods qualify for a refund’. We have also learned that such exit certificates are <span class="italic">invariably</span> used in the Federal Republic of Germany, and therefore also in the case of direct exports. Since, however, Part B of the exit certificate contains an endorsement by the customs office ‘where the <span class="italic">customs export formalities</span> are <span class="italic">completed</span>’<span class="italic">and</span>, since Article 1 of Regulation No 1041 provides that acceptance of the document by which the declarant states his intention to export the products in question and qualify for a refund shall be considered to be <span class="italic">completion of the customs export formalities</span>, the Finanzgericht appears to proceed on the basis that the declaration of intent mentioned in Article 1 of Regulation No 1041 can be regarded as being included in the said exit certificate. As there are in my opinion good grounds for holding this view, the question therefore in fact arises, with reference to the facts in the main action, whether the certificate of the exporter in the <span class="italic">exit certificate</span> can be regarded as an application for the purposes of Article 17 of Regulation No 1009. This is the view which the plaintiff strenuously advocates while the Federal German Government and the Commission, for reasons which are in essence identical, submit that the question should be answered in the negative.

If consideration is given to the view to be taken of the problem when stated in this way, it must without any doubt be conceded that there are clear distinctions between the actual purpose which must be attributed to the application lodged under Article 17 of Regulation No 1009 on the one hand and to the declaration made under Article 1 of Regulation No 1041 and also the exit certificate issued under Article 5 of this regulation on the other hand. The purpose of the firstmentioned application is to enable the right to claim a refund, to which, as emerges from the statement of the facts, various conditions apply, to be checked and acknowledged. On the other hand the purpose of the declaration under Article 1 of Regulation No 1041 and its acceptance is to determine the date of exportation, which in turn determines the rate of the refund to be applied, the relevant characteristics of the product exported and the Member State responsible for paying the refund. Finally I would mention that the main purpose of the exit certificate under Article 5 of Regulation No 1041 is clearly to provide proof that the product in question has left the geographical territory of the Community or has reached its intended destination. If the problem is looked at in this way, it could be tempting to give a negative answer to the question referred by the Finanzgericht and defined above.

Nevertheless I hesitate to say that this solution is the right one. It has been rightly repeated over and over again that, in view of the extremely complex nature of the common organizations of agricultural markets and their trading arrangements, one should endeavour, by avoiding excessive formalism, to render their application practicable for commerce. In the context of this case this overriding principle is justified for two reasons. On the one hand the plaintiff has made it clear that the Community rules presently at issue are not, taken as a whole, entirely clear, and that they disclose certain deficiencies, at least in drafting. Regulation No 1009 for example expressly refers to an <span class="italic">application</span> for the refund whereas Article 10 of Regulation No 1041 only mentions the <span class="italic">documents</span> which have to be lodged and reference has to be made to a recital of this regulation to find out that applications for payment of the refund should be made within a reasonable period. On the other hand a recital in Regulation No 499/69 recommends that this rule should be made more <span class="italic">flexible.</span> It is true that this recital refers primarily to the provisions concerning <span class="italic">force majeure</span> but it appears, however, to have also a wider significance.

Seen in this way, the following points assume importance having regard to the provisions of Article 5 of Regulation No 1041, which govern the issue of exit certificates. This certificate contains a ‘<span class="italic">description of the goods</span> according to the tariff nomenclature <span class="italic">for refunds</span>’. In addition the exporter must ‘certify that these goods <span class="italic">qualify for a refund</span>’. This — as we have seen — can be treated as a statement of intention within the meaning of Article 1 of Regulation No 1041, that is to say, it can be assumed that it is a sufficiently clear expression of the exporter's intention to claim a refund on the export transaction. Further, this statement of intention has to be brought to the notice of the authority responsible for granting the refund. Article 5 of Regulation No 1041 provides that a copy shall be sent directly to the authority responsible for paying the refund, if the customs office of exit is not itself responsible for granting the refund. In addition, after the original of the certificate which accompanies the goods has been endorsed by the customs office of exit from the Community, it shall then ‘within eight days’ be returned by this office to the national authority shown in the certificate heading, in this case to the Hauptzollamt Hamburg-Jonas. This provision therefore ensures that the exporter's statement of intention reaches the authority responsible for paying the refund. This raises the presumption, however, that it is perfectly reasonable to treat the exporter's declarations in the exit certificate as an application for a refund.

If the objection is raised against this argument that at the time when the declaration is made under Article 1 of Regulation No 1041 an application for payment of the refund has not yet come into being and that, since, after the exporter makes the declaration, he can always dispose of the goods elsewhere and decide not to apply for the refund, it can therefore only be regarded as a declaration of <span class="italic">intent</span>, it must be acknowledged that this objection is not entirely misconceived. However the normal pattern can be taken to be that in the majority of cases the exportation can be presumed to have been effected and that owing to the price situation — as the plaintiff rightly emphasized — there is economic pressure to claim the refund. This explains why, following acceptance of the declaration, the administrative machinery is set in motion, certain verifications (of the quantity, nature and characteristics of the goods) are undertaken, the results of which are apparently sent direct to the authority responsible for paying the refund, and the exporter may receive an advance payment of the refund. Moreover it may at least be inferred from the forwarding of evidence and declarations as to the origin of the goods and their departure from the Community that, as is usually the case, it is still intended to claim a refund, that is to say, from actions which, as the plaintiff, referring to the most recent decision of the Court on the question of the submission of offers to intervention agencies, has rightly said, must, if one takes a reasonable view of the matter, be allowed to be undertaken in stages and if necessary, to be completed afterwards. Consequently there is no danger whatever, if it is assumed that the requirement of an application for a refund is satisfied by the declaration made under Article 1 of Regulation No 1041 or by the certificate issued under Article 5 of that regulation, that refunds will be granted in cases where undertakings have not adhered to their original intention to export the goods in question.

However it is quite clear — and I come now to the last objection — that the applicable <span class="italic">German</span> implementing provisions expressly provide that the application for payment of the refund must be lodged with the competent customs office ‘in the prescribed form’. There is therefore a supplementary provision as to form which the Federal German Government and the Commission both assume was rightly issued on the basis of Community law. In order to support this view they rely on Article 10 of Regulation No 1041 which provides that ‘the refund shall be paid by the Member State in whose territory the customs export formalities were completed’ and they call attention to the fact, which is frequently encountered in Community law, that national implementing measures are essential for the implementation of Community law. However if this particular aspect of the matter is examined more closely, an answer to this objection can easily be found in the case-law of the Court. Thus in the judgment in Case <a href="http://eur-lex.europa.eu/query.html?DN=61970??0039&amp;locale=EN" onclick="target='CourtTab';">39/70 <span class="italic">(Norddeutsches Vieh- und Fleischkontor GmbH</span> v <span class="italic">Hauptzollamt Hamburg St. Annen</span> [1971] ECR</a>) it was pointed out that when national authorities are responsible for implementing a Community regulation it must be recognized that ‘in principle this implementation takes place with due respect for the forms and procedures of national law’. This judgment on the other hand also stated that ‘the uniform application of Community provisions allows no recourse to national rules except to the extent <span class="italic">necessary</span> to carry out the regulations’ and that there was no such need where, as in that case, the rules submitted for interpretation laid down ‘the conditions which must be fulfilled for the levy to be suspended as well as arrangements for security and the supervision designed to prevent fraud’. There can in my opinion be no doubt that this lastmentioned reservation applies to the present case. A real need for implementing provisions in this case only arises to the extent to which the competent authorities have to be determined. On the other hand a refund based on the provisions of Community law can be granted if the party concerned has clearly stated his intention to claim the refund and produced a whole series of forms of proof specified under the Community regulations themselves. In particular I would not regard the use of the special form prescribed under German law as essential, because it does not call for any information which is not already found in the exit certificate (apart from statements concerning the method of payment — particulars of an account and a possible transfer of the sum — which indeed are not necessary for the acceptance of the claim but only for payment of the refund). It can also hardly be maintained that the claimant must use a special form, because in the Federal Republic of Germany computers are used in order to expedite payment of the refund. There is no doubt that organization of this kind may be regarded as effective and useful and that it may be assumed that the undertakings concerned will in their own interests conform to it. The use of a special form by the applicant does not however appear to be <span class="italic">essential</span> within the meaning of the cases which have been quoted, because if necessary, the administration itself can transfer the required particulars to such a form.

Accordingly I would like to conclude my consideration of the first question by saying that upon a proper construction of Community law an exit certificate issued pursuant to Article 5 of Regulation No 1041 is also to be regarded as an application for a refund, in so far as this certificate is used and the continuing intention to claim a refund can be clearly inferred from additional documents produced later. On the other hand it cannot be inferred from the detailed Community provisions which exhaustively determine the conditions for the grant of the refund that, within the framework of national implementing provisions, additional requirements as to form of a stricter nature may be fixed, non-compliance with which must lead to a loss of the right to the refund.

The conclusions at which I have arrived with regard to the first question make it unnecessary to deal with the other questions in the order making the reference. However, by way of a secondary examination, I will consider these questions too. In its second question the Finanzgericht Hamburg asks whether, if a separate application for the refund has to be made, a written application must be lodged or whether an oral request is sufficient.

In this connexion it must indeed be admitted that the Community regulations which now have to be examined — unlike the other Community provisions quoted by the plaintiff — do not expressly provide that the application must be in writing. However this does not necessarily mean that any form of application will do, as the applicant would like to assume, relying on a general principle which it does not go on to substantiate. Requirements as to form may stem from the nature of the particular matter as well as from the circumstances surrounding it. In my opinion it is relatively easy to prove that in fact the latter approach to requirements as to form applies to this case.

For this purpose reference may not only be made to the large number of claims for the refund with which the national authorities have to deal, to the need for a proper system of checking applications linked to payments out of public funds as well as the need, in the event of any improper payment of a refund, to be armed, with a view to obtaining repayment, with evidence to prove that an application has in fact been lodged. It is also significant that the claimant has to produce evidence of other facts which have relevance in this connexion and of course — as we have seen — such evidence must be <span class="italic">in writing.</span> Finally it is interesting to note that the certificate provided for in Section A of the exit certificate, according to the model given in the Annex to Regulation No 1041, must also be in writing. If, therefore, the view taken of the first question, namely that this certificate together with certain other matters can be regarded as an application for the refund, cannot be accepted, it must at least be concluded from the said model that the actual application for the refund, a factor establishing the claim and as such more than a mere declaration of interest, must be in writing.

This is the form which the answer to the second question should take and which would at the same time make it clear that in this connexion the German implementing provisions clarify Community law in a permissible manner.

The third question, which asks whether the application for the refund is one of the documents which have to be lodged within the period prescribed in Article 10 of Regulation No 1041, can also be briefly answered in the view of the concurring views of the parties concerned.

In fact in favour of an affirmative answer it can not only be argued that it would have hardly been logical to require certain evidence to be lodged before the expiration of the said period but not the application itself, that is to say, an essential part of the claim for the refund. In addition the recitals of the said regulation provide valuable material pointers, since they state that ‘for administrative reasons applications for payment of the refund should be made within a reasonable period’. There is therefore no doubt that the application for a refund is one of the documents in support of the claim for payment of the refund within the meaning of Article 10 of Regulation 1041.

Finally in a fourth question the Finanzgericht Hamburg requests the Court to clarify the expression ‘<span class="italic">force majeure</span>’ which has been incorporated by Regulation No 499/69 into Article 10 of Regulation No 1041.

According to the existing provisions and the case-law of the Court to date this clarification should not present any very great difficulties.

First of all it is well established that in the case of <span class="italic">force majeure</span> it is the particular connexion in which the said expression is used in Community law and not national law which is decisive (I refer in this connexion to the judgments in Cases <a href="http://eur-lex.europa.eu/query.html?DN=61968??0004&amp;locale=EN" onclick="target='CourtTab';">4/68, [1968] ECR 377</a>, <a href="http://eur-lex.europa.eu/query.html?DN=61970??0011&amp;locale=EN" onclick="target='CourtTab';">11/70, [1970] ECR 1125</a> and <a href="http://eur-lex.europa.eu/query.html?DN=61970??0025&amp;locale=EN" onclick="target='CourtTab';">25/70, [1970] ECR 1161</a>). It is also significant that the recitals to Regulation No 499/69 recommend that the concept of <span class="italic">force majeure</span> should be applied in a <span class="italic">flexible</span> manner. Consequently a <span class="italic">wide</span> rather than a narrow interpretation is appropriate.

For more detailed particulars of the definition of force majeure we can turn to the earlier decisions of the Court in similar cases (forfeiture of the deposit under Community law applicable to foreign trade). This is so because the exporter under Article 10 of Regulation No 1041 also has to take certain steps, which depend basically on his own volition, within a prescribed period, in order not to lose his legal rights. I therefore propose to refer to the passage of your judgment in Case 11/70 where it is stated that ‘the concept of force majeure is not limited to absolute impossibility but must be understood in the sense of unusual circumstances, outside the control of the importer or exporter, the consequences of which, in spite of the exercise of all due care, could not have been avoided except at the cost of excessive sacrifice’. It can be said by way of explanation that a claimant cannot rely on force majeure if the delay is attributable to him. Conversely, however, not every failure to comply with the period through no fault of his own is sufficient, but the claimant must be required to do everything reasonably necessary — to the extent to which this does not involve disproportionate efforts — and to show the degree of care expected of a good businessman. Whether the plaintiff's version of the facts (the alleged loss of the application for the refund after it had been despatched either in transit or at the office of the authority responsible for payment of the refund) is sufficient to enable him to plead force majeure does not now have to be determined. It is, however, perfectly reasonable to submit that after duly despatching an application for the refund it does not appear to be necessary to check straight away with the addressee to make sure that it has been received. Such enquiries can at most be regarded as appropriate if an award of a refund from the authority is not made within the period which it is customary to expect. These guidelines should enable the national court — if they are relevant in the proceedings before it — to apply Article 10 of Regulation No 1041 in the proper manner.

In conclusion I have a final observation to make on an objection raised by the plaintiff in the main action in this connexion. It takes the view that there is a case not covered by the time-limit laid down by Article 10 of Regulation No 1041, because this does not state the period within which, after force majeure has ceased to exist, the step which was not taken in time must be carried out. It follows from this that the whole of the rules on time-limits contained in the provision are invalid. Now no such question of validity was in fact raised by the court making the reference, and for this reason — which the case-law to date of the Court has confirmed — it will not be examined by the Court. However, I would just like to add this. In the first place it seems to me to be remarkable that the rules as to time-limits which are necessary to ensure sound administration were initially applied without any exception and that their validity was nevertheless never called in question. On the other hand special attention should be drawn to the principle that the invalidity of a legal norm and the consequent frustration of the legislative intention can only be accepted if all efforts to arrive at a reasonable interpretation which will uphold its validity have failed. In the light of this principle the surrounding circumstances, and perhaps in the present case even general legal principles have a part to play in the necessary rounding out of a system of rules. For the purposes of the problem now at issue this could mean, for example, that the applicant must forthwith proceed to take the necessary steps required of him after it has come to his notice that force majeure has prevented him from complying with the relevant time-limits. I would therefore, without going into the problem, which in my view is not decisive, in any greater detail, take the view that there is no justification for supposing that Article 10 of Regulation No 1041 is invalid for the reasons put forward by the plaintiff.

To sum up I submit that the questions referred should be answered in the following way :

(a)The declaration which the exporter has to make in the exit certificate under Article 5 of Regulation No 1041/67 certifying that the goods for export qualify for an export refund can be regarded as an application for payment of the refund under Article 17 of Regulation No 1009/67, in particular in those cases where the exporter complies within the prescribed time with the other conditions for the grant of the refund;

(b)If it is assumed that the application for the refund has to be lodged separately, then it must be in writing;

(c)The application for the refund is one of the documents referred to in Article 10 of Regulation No 1041/67;

(d)There is force majeure when a person who has to take a certain step of his own volition is prevented from doing so within the prescribed time owing to unusual circumstances beyond his control, the consequences of which, in spite of the exercise of all due care on his part, could not have been avoided except at the cost of excessive sacrifice.

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Translated from the German.