1 BY ORDER OF 9 NOVEMBER 1981 , WHICH WAS RECEIVED AT THE COURT ON 30 NOVEMBER 1981 , THE HESSISCHES FINANZGERICHT ( FINANCE COURT , HESSE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS CONCERNING THE CONDITIONS FOR THE ISSUE OF CONTROL COPY T NO 5 AS DEFINED BY ARTICLE 10 OF COMMISSION REGULATION NO 223/77 OF 22 DECEMBER 1976 ON PROVISIONS FOR THE IMPLEMENTATION OF THE COMMUNITY TRANSIT PROCEDURE AND FOR CERTAIN SIMPLIFICATIONS OF THAT PROCEDURE ( OFFICIAL JOURNAL 1977 , L 38 , P.20 ).
2 THE DISPUTE BEFORE THE NATIONAL COURT AROSE OUT OF THE EXPORTATION BY ALFRED EGGERS & CO . ( HEREINAFTER REFERRED TO AS ' ' EGGERS ' ' ) OF A CONSIGNMENT OF LARD TO THE UNITED KINGDOM . BECAUSE THE EXPORT TOOK PLACE WITHOUT THE ISSUE OF CONTROL COPY T NO 5 , THE GERMAN CUSTOMS ADMINISTRATION REFUSED TO PAY TO EGGERS THE MONETARY COMPENSATORY AMOUNTS IN RESPECT OF THE GOODS EXPORTED . FOLLOWING THAT REFUSAL , EGGERS SUBMITTED AN APPLICATION TO THE GERMAN CUSTOMS ADMINISTRATION FOR THE RETROACTIVE ISSUE OF CONTROL COPY T NO 5 . THAT APPLICATION WAS ALSO REJECTED . EGGERS BROUGHT AN ACTION BEFORE THE HESSISCHES FINANZGERICHT AGAINST THAT DECISION REFUSING RETROACTIVELY TO ISSUE CONTROL COPY T NO 5 .
3 CONSIDERING THAT THE SOLUTION OF THE DISPUTE DEPENDED ON WHETHER OR NOT THE RETROACTIVE ISSUE OF CONTROL COPIES WAS PERMISSIBLE UNDER COMMUNITY LAW , THE HESSISCHES FINANZGERICHT REFERRED TO THE COURT THE FOLLOWING QUESTIONS :
' ' 1 . ARE THE MEMBER STATES ENTITLED TO ISSUE RETROACTIVELY CONTROL COPY T NO 5 , PROVIDED FOR BY ARTICLE 10 OF REGULATION ( EEC ) NO 223/77 , EVEN WHERE COMMUNITY LAW DOES NOT PROVIDE FOR ITS RETROACTIVE ISSUE?
2.IF THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE , MAY AN AGREEMENT REACHED BY THE COMMITTEE ON COMMUNITY TRANSIT , SET UP PURSUANT TO ARTICLE 55 OF REGULATION ( EEC ) NO 222/77 , WHICH PERMITS UNDER CERTAIN CONDITIONS THE RETROACTIVE ISSUE OF CONTROL COPY T NO 5 , FOR WHICH COMMUNITY LAW MAKES NO PROVISION , ENTITLE THE MEMBER STATES TO ISSUE THE CONTROL COPY RETROACTIVELY?
3.IF THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE , MAY A DIRECT LEGAL RIGHT TO THE RETROACTIVE ISSUE OF THE CONTROL COPY ARISE UNDER SUCH AN AGREEMENT IN CERTAIN CIRCUMSTANCES?
4.IF THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE , ARE THE MEMBER STATES ENTITLED TO MAKE THE RETROACTIVE ISSUE OF CONTROL COPIES SUBJECT TO ADDITIONAL CONDITIONS NOT PROVIDED FOR BY THE AGREEMENT?
' '
4 BEFORE AN ANSWER IS GIVEN TO THE QUESTIONS SUBMITTED BY THE NATIONAL COURT , IT IS NECESSARY , AS THE COMMISSION HAS STRESSED , TO DISTINGUISH BETWEEN THE USE OF CONTROL COPY T NO 5 AS DOCUMENTARY EVIDENCE IN APPLICATION OF COMMUNITY RULES ( FOR WHICH PURPOSE IT WILL HEREINAFTER BE REFERRED TO AS A ' ' COMMUNITY ' ' DOCUMENT ) AND ITS USE AS DOCUMENTARY EVIDENCE UNDER A PROVISION OF NATIONAL LAW ( FOR WHICH PURPOSE IT WILL HEREINAFTER BE REFERRED TO AS A ' ' NATIONAL ' ' DOCUMENT ).
5 CONTROL COPY T NO 5 IS A COMMUNITY DOCUMENT WHERE IT IS USED UNDER ARTICLE 11 OF REGULATION NO 1380/75 OF THE COMMISSION OF 29 MAY 1975 LAYING DOWN DETAILED RULES FOR THE APPLICATION OF MONETARY COMPENSATORY AMOUNTS ( OFFICIAL JOURNAL 1975 , L 139 , P . 37 ) AS THE MEANS OF PROOF UPON WHICH THE PAYMENT BY THE EXPORTING MEMBER STATE OF COMPENSATORY AMOUNTS WHICH SHOULD BE GRANTED BY THE IMPORTING MEMBER STATE IS CONDITIONAL .
6 ON THE OTHER HAND , CONTROL COPY T NO 5 IS A NATIONAL DOCUMENT WHEN THE EXPORTING MEMBER STATE DECIDES , AS THE FEDERAL REPUBLIC OF GERMANY HAS DONE , THAT IT IS ALSO TO BE USED AS PROOF FOR THE PURPOSE OF THE GRANT OF COMPENSATORY AMOUNTS GRANTED BY THE EXPORTING MEMBER STATE .
FIRST QUESTION
7 IN RELATION TO THE USE OF CONTROL COPY T NO 5 AS A COMMUNITY DOCUMENT , ALTHOUGH IT IS CORRECT THAT ITS RETROACTIVE ISSUE IS NOT EXPRESSLY PROVIDED FOR IN REGULATION NO 1380/75 , ARTICLE 11 ( 5 ) OF THAT REGULATION , AS AMENDED BY REGULATION NO 1498/76 OF 25 JUNE 1976 ( OFFICIAL JOURNAL 1976 , L 167 , P . 28 ), NEVERTHELESS PROVIDES FOR THE GRANT OF A FRESH CONTROL COPY WHERE THE FIRST HAS GONE ASTRAY ' ' OWING TO CIRCUMSTANCES BEYOND THE CONTROL OF THE PERSON CONCERNED ' ' .
8 THAT PROVISION MUST BE REGARDED AS EMBODYING AND RECOGNIZING A GENERAL PRINCIPLE WHEREBY PROCEDURAL FLAWS WHICH ARE BEYOND THE CONTROL OF THE PERSON TO WHOM COMPENSATORY AMOUNTS SHOULD NORMALLY BE GRANTED MUST NOT HAVE EFFECTS WHICH ARE UNFAVOURABLE TO HIM .
9 THE APPLICATION OF THAT PRINCIPLE INEVITABLY IMPLIES THAT WHERE CONTROL COPY T NO 5 , AS A COMMUNITY DOCUMENT , HAS , FOR REASONS WHICH ARE BEYOND THE CONTROL OF THE PERSON TO WHOM MONETARY COMPENSATORY AMOUNTS SHOULD BE GRANTED , NOT BEEN ISSUED , THE PERSON CONCERNED IS ENTITLED TO THE RETROACTIVE ISSUE OF THAT DOCUMENT PROVIDED THAT HE IS ABLE TO PRODUCE THE SUPPORTING DOCUMENTS REQUIRED IN ORDER TO OBTAIN IT .
10 WITH REGARD TO THE USE OF CONTROL COPY T NO 5 AS A NATIONAL DOCUMENT , IT IS CORRECT THAT ARTICLE 10 ( 1 ) OF REGULATION NO 1380/75 LEAVES IT TO THE MEMBER STATES TO SPECIFY THE MEANS OF PROOF UPON WHICH THE PAYMENT OF COMPENSATORY AMOUNTS GRANTED BY THE EXPORTING MEMBER STATE IS CONDITIONAL .
11 HOWEVER , THAT DOES NOT MEAN THAT THAT MEMBER STATE MAY , WHERE IT HAS DECIDED TO USE CONTROL COPY T NO 5 AT NATIONAL LEVEL , THEN REFUSE TO APPLY THE PROCEDURAL RULES CONCERNING THE RETROACTIVE ISSUE OF THAT CONTROL COPY WHICH HAVE BEEN LAID DOWN BY COMMUNITY LAW . ANY OTHER SOLUTION COULD BE ONLY A SOURCE OF CONFUSION AND LEGAL UNCERTAINTY .
12 THE ANSWER TO THE FIRST QUESTION SUBMITTED BY THE HESSISCHES FINANZGERICHT SHOULD THEREFORE BE THAT , ON THE ONE HAND , THE MEMBER STATES ARE BOTH ENTITLED AND REQUIRED TO ISSUE RETROACTIVELY CONTROL COPY T NO 5 PROVIDED FOR BY ARTICLE 10 OF REGULATION NO 223/77 IN ORDER TO ENABLE PROOF TO BE FURNISHED PURSUANT TO ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 CONCERNING THE PAYMENT BY THE EXPORTING MEMBER STATE OF COMPENSATORY AMOUNTS WHICH SHOULD BE GRANTED BY THE IMPORTING MEMBER STATE WHERE THE FAILURE TO APPLY FOR OR TO ISSUE THE DOCUMENT WHEN THE GOODS WERE CONSIGNED WAS BEYOND THE CONTROL OF THE PERSON CONCERNED AND THAT PERSON IS ABLE TO PRODUCE THE SUPPORTING DOCUMENTS REQUIRED FOR THE ISSUE OF THE CONTROL COPY .
13 ON THE OTHER HAND , WHERE AN EXPORTING MEMBER STATE LAYS DOWN THAT THE PROOF REQUIRED FOR THE PURPOSES OF ARTICLE 10 ( 1 ) OF REGULATION NO 1380/75 ON THE PAYMENT BY THE EXPORTING MEMBER STATE OF THE COMPENSATORY AMOUNTS GRANTED BY THAT STATE IS TO BE FURNISHED IN THE FORM OF CONTROL COPY T NO 5 , IT IS BOTH ENTITLED AND REQUIRED TO ISSUE THE DOCUMENT RETROACTIVELY ON THE SAME CONDITIONS AS THOSE WHICH ARE LAID DOWN WHERE CONTROL COPY T NO 5 IS USED AS A COMMUNITY DOCUMENT PURSUANT TO ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 .
SECOND , THIRD AND FOURTH QUESTIONS
14 IN VIEW OF THE REPLY TO THE FIRST QUESTION , IT IS UNNECESSARY TO REPLY TO THE SECOND , THIRD AND FOURTH QUESTIONS .
COSTS
15 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .
ON THOSE GROUNDS ,
THE COURT ( THIRD CHAMBER )
IN ANSWER TO THE QUESTIONS SUBMITTED TO IT BY THE HESSISCHES FINANZGERICHT BY ORDER OF 9 NOVEMBER 1981 , HEREBY RULES :
1 . THE MEMBER STATES ARE BOTH ENTITLED AND REQUIRED TO ISSUE RETROACTIVELY CONTROL COPY T NO 5 PROVIDED FOR BY ARTICLE 10 OF REGULATION NO 223/77 IN ORDER TO ENABLE PROOF TO BE FURNISHED PURSUANT TO ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 CONCERNING THE PAYMENT BY THE EXPORTING MEMBER STATE OF COMPENSATORY AMOUNTS WHICH SHOULD BE GRANTED BY THE IMPORTING MEMBER STATE WHERE THE FAILURE TO APPLY FOR OR TO ISSUE THE DOCUMENT WHEN THE GOODS WERE CONSIGNED WAS BEYOND THE CONTROL OF THE PERSON CONCERNED AND THAT PERSON IS ABLE TO PRODUCE THE SUPPORTING DOCUMENTS REQUIRED FOR THE ISSUE OF THE CONTROL COPY .
2.WHERE AN EXPORTING MEMBER STATE LAYS DOWN THAT THE PROOF REQUIRED FOR THE PURPOSES OF ARTICLE 10 ( 1 ) OF REGULATION NO 1380/75 CONCERNING THE PAYMENT BY THE EXPORTING MEMBER STATE OF COMPENSATORY AMOUNTS GRANTED BY THAT STATE IS TO BE FURNISHED IN THE FORM OF CONTROL COPY T NO 5 , IT IS BOTH ENTITLED AND REQUIRED TO ISSUE THE DOCUMENT RETROACTIVELY ON THE SAME CONDITIONS AS THOSE WHICH ARE LAID DOWN WHERE CONTROL COPY T NO 5 IS USED AS A COMMUNITY DOCUMENT PURSUANT TO ARTICLE 11 ( 2 ) OF REGULATION NO 1380/75 .
