The Gazette 1975

Legal Europe SLIGO SEMINAR on E.E.C. LAW—OCTOBER 1974 THE E.E.C. AND THE ORDINARY SOLICITOR—SOME RELEVANT CASES

By JOHN F. BUCKLEY, Solicitor

Part II

In the case, the Polish State Bureau for External Trade, had sold slaughtered duck to an Austrian firm which had refuseed to take them because of a late delivery and • subsequently they had apparently come into the hands of a Swiss firm who had sold them to Mr. Brun- ner in Munich and they had arrived with a customs declaration indicating that they had come from Poland. In a further case, Rheinmuhlen, No. 6/1971, the Court decided that a Member State could require an applicant for an export subsidy to satisfy the member state that the goods concerned had at least been put into free circulation in a non member country and could also require proof that the goods were used, consumed, treated or processed in a non member coun- try. The particular case was a particularly flagrant one because Rheinmuhlen had declared that barley and wheat had been exported by it to Portugal, Switzer- land and Yugoslavia, whereas in fact the wheat had been put into circulation and consumed in Luxembourg. Rheinmuhlen's case was based on the absence of any claim for a levy applicable to intra-Community Im- ports and that the absence of such claim raised a presumption that the goods had been exported to a non-member state. The Hamburg Fiscal Court gave another strict in- terpretation of the regulations when it held in a Case called "Export Subsidies on Pork" (1971) C.M.L.R. 95, !hat the date governing a qualification for an export subsidy was the date on which the customs officer ac- cepted its declaration of intent to export, even where the customs office had been encouraging exporters to sub- mit certificates each month for all dispatches during that month. In an appeal from the Hamburg Fiscal Court the Federal Fiscal Court of Germany had held in 0 case called "Revocation of Export Refunds" (1971) C.M.L.R. 51, that the mere movement of goods into a free port was not sufficient to qualify it for 'he export subsidy, even where there was verifiable evidence that the goods were intended to be transported to the spec- ified non-member state. The European Court has even held that the making of a distinction between the methods of calculation of imports levies for imports from Non-member States be- ing carried out in a different manner than fhe calcul- ations of levies for inter Community trade was some- thing which the Council was entitled to do. It has also held that the doctrine of Force Majeure could not be ap- plied to imports in inter Community trade because the levies were not fixed in advance, but could be applied to imports from Non-member States where the import duties were fixed in advance. This was in the Oehlmann 111

In two other cases Italy has been similarly found wanting by the Court. In the National Vineyards Register Case No. 33/1969 (1970) C.M.L.R. 466, the Court made a declaration that Italy had failed to com- ply wi'h its óbligations to establish a Register of Vine- yards as required by a regulation requiring such a Reg- ister to be established within a particular time limit, and in the Forestry Reproductive Material Case 79/1972 (1973) C.M.L.R. 773, the Court held that a Member State which failed to implement a direc- tive within the time limit set down in the direc- tive was in breach of its obligations and that delay in Parliamentary legislative process resulting from a pol- itical crisis and dissolution of Parliament was not a good excuse for the failure. The political crisis had occurred three years after the expiry of the relevant time limit. In dealing with the application of the regulation governing export subsidies a German Court and the European Court have each had to consider questions involving the composition of sausages. In a case de- lightfully entitled "Re Rotten Sausages" (1972) C.M.L.R. 488, the Hamburg Fiscal Court decided that an export subsidy under the appropriate regulation could only be granted for food stuffs if they were fit for human consumption. In the case in question the ap- propriate Department of the Hamburg Customs had doubts about the quality of certain sausages being ex- ported and referred them to the Veterinary Depart- ment who decided tha.t the product could not be de- scribed as raw sausage. The Hamburg Court decided not only that this disqualified the product from a sub- sidy but also that the applicant for the subsidy would have to be responsible for the fees of the Veterinary Examiner. More recently the European Court has had to con- sider a more technical question in the Muras Case No. 12/1973, (not yet reported). It decided that a subsidy would not be payable for a sausage which was not of such quality as would permit it to be sold on the home customs territory. A further example of the strict construction applied to regulations is to be found in the Brunner Case No- 9/1972 (1972) C.M.L.R. 931, where the European Court decided that the term "coming from" in an E.E.C. Regulation which referred to imports into the Community was to be construed with the meaning that goods "coming from" Poland were goods which up to the time of their delivery into the Community were within the power of disposal and under the immediate control of the Vendor.