ECJ Legal nature of the security lodged in respect of an export licence.
1. Under community rules such as the second indent of article 38*(1)*(c ) of regulation no 3183/80, which requires the provision of fresh security after the release under special arrangements, before exportation actually takes place and at the request of the exporter, of security intended to ensure the performance by the licence holder of his obligation to export within a prescribed time-limit, where the said time-limit has not been complied with, the fresh security ceases to be a guarantee and becomes a penalty when the undertaking has not been complied with and no longer can be complied with.
However, that penalty, which is intended to achieve the same objective as the security itself and whose only effect is to place the defaulting trader in the same position as if he had not voluntarily opted for advance release of the security, is an integral part of the system of security at issue and is not criminal in nature.
2. The forfeiture of two securities relating to the same export transactions but having different purposes, one intended to ensure repayment of the export refund paid in advance if exportation does not take place and the other intended to ensure that the undertaking to export during the validity of the export licence will be honoured, even if it is triggered by the same event, cannot be regarded as disproportionate if the different risks in respect of which the securities were lodged actually materialize.
Citations:
R-137/85, [1987] EUECJ R-137/85
Links:
Jurisdiction:
European
Agriculture
Updated: 21 June 2022; Ref: scu.215538
