Federal Republic of Germany v Commission of the European Communities (46/82)

I —Facts and written procedure

In the contested decision of 16 November 1981, which was notified to the Permanent Representation of the Federal Republic of Germany at the European Communities on 3 December 1981, the Commission disallowed the financing by the Community of a sum totalling DM 32894745.37.By way of reasons for disallowing the sum in question, the decision itself, referring exclusively to Anieles 2 and 3 of Regulation (EEC) No 729/70 of the Council of 21 April 1970 (Official Journal, English Special Edition 1970 (I), p. 218), observed in general terms that the refunds disallowed had not been granted in accordance with the Community rules on the subject.Following suspension of the proceedings pending before the Court, the parties reached a partial agreement succeeding in appreciably reducing the amount disputed, which now stands at DM 5407890.68, instead of the figure of DM 16978093.28 entered in the application. As regards the sum of DM 945.51 relating to aid for the storage of wine, the issue became nugatory as the parties were able to reach agreement on the matter.Thus, according to the concurring statements of the two parties, the present stage of the action is concerned exclusively with the monetary compensatory amounts paid out during the financial year 1975 for national supplies of wheat and wheat flour drawn from public intervention stocks and delivered as part of the food-aid programme between 1 July 1972 and 18 March 1975.In respect of those supplies the Einfuhr-und Vorratsstelle für Getreide und Futtermittel [Impon and Storage Agency for Cereals and Feedingstuffs, hereinafter referred to as “the German intervention agency”] had, within the permitted period, submitted the payment documents to the Hauptzollamt Hamburg-Jonas [Principal Customs Office Hamburg-Jonas, hereinafter referred to as “the Hauptzollamt”], the body empowered to disburse export refunds and monetary compensatory amounts; the documents did not, however, contain any express request for monetary compensatory amounts.The Hauptzollamt initially did no more than give a decision on the export refunds, and, in most cases, it refused payment thereof on the ground that no such refunds existed between November 1973 and March 1975.During the summer of 1975 the German intervention agency then claimed payment of the monetary compensatory amounts a posteriori, by means of applications which were all drawn up on plain paper and consisted of a single sentence referring expressly, inter alia, to the original payment documents.Following those applications, the Hauptzollamt adopted decisions permitting the payment of the monetary compensatory amounts and paid over a total of DM 18230594 in the course of the financial year 1975, in pursuance of Community rules on the subject, in particular Regulation (EEC) No 1463/73 of the Commission of 30 May 1973 laying down detailed rules for the application of monetary compensatory amounts (Official Journal, L 146, p. 1). As the applications from the German intervention agency for payment of the monetary compensatory amounts had been received by the Hauptzollamt within the six-month period laid down by Article 14 of that regulation, the payments in question were charged by the Commission to the European AgriculturaLGuidance and Guarantee Fund (hereinafter referred to as “the Fund”)Apart from those cases, which involved DM 1252500.72, the Commission refused Community financing for the compensatory amounts paid retroactively, on the ground that no express application as required by German law on the payment of monetary compensatory amounts had been submitted within the period prescribed by Community law. In that regard, it was alleged, there had therefore been an infringement of Article 14 of Regulation No 1463/73, which provides as follows:“The application for payment of a ‘monetary’ compensatory amount must be submitted, save in cases of force majeure, within the six months following the date of completion of customs formalities; otherwise it shall be rejected.”Applications for monetary compensatory amounts must be submitted in accordance with Article 13 of the regulation, which provides that:“Payment of ‘monetary’ compensatory amounts to be granted shall be made only in receipt of a written application from the person concerned. Member States may draw up a special form for this purpose.”The 200 or so requests for payment which the German intervention agency submitted to the Hauptzollamt between July 1972 and March 1975 took the form of printed forms known as “Control Copies 5” or “T 5” as prescribed by Community transit procedure, a specimen of which is annexed to Regulation (EEC) No 2315/69 of the Commission of 19 November 1969 on the use of Community transit documents for the purpose of applying Community measures for verifying the use and/or destination of goods (Official Journal, English Special Edition 1969 (II), p. 515). Article 1 of the regulation is worded as follows:“When the application of a Community measure adopted in respect of imports or exports of goods, or of movement of goods within the Community, is conditional upon proof that such goods are intended for the use and/or destination provided for or prescribed by that measure, proof shall be furnished by producing a special copy of the Community transit document, hereinafter referred to as ‘the control copy’, bearing the number 5.”In the matter of monetary compensatory amounts, the applications for payment were submitted in several different forms.— In some cases the T 5 control copies bore the typewritten heading “Ausgleichsbetrag Währung” (monetary compensatory amount).— In many cases the control copy showed, under Heading 106, the provisions of the notices applicable in each instance, issued by the Federal Ministry of Food, Agriculture and Forestry, laying down national implementing measures on the grant of monetary compensatory amounts.— Approximately one third of the T 5 control copies contained no express reference to the monetary compensatory amounts.After the present action had been brought, the Commission agreed to charge the monetary compensatory amounts to the Fund provided that they had been paid over by the Hauptzollamt in cases which, despite the absence of any express request for payment, the control copies had referred to the compensatory amounts or had mentioned under Heading 106 the provisions of the aforesaid notices applicable to each particular case. Those cases represent a total of DM 11570202.60, thus reducing the disputed amount to DM 5407890.68.The written procedure in this case followed the normal course except as regards the suspension of proceedings referred to above, which enabled the parties to reach a settlement out of court as regards part of their dispute.Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, the Court put various questions to the Government of the Federal Republic of Germany and to the Commission.