Opinion of the Advocate General — ECLI:EU:C:2016:223
Date: 2016-04-07
Language of the case: Dutch
Subject matter: Free movement of goods;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Netherlands

summary record of the 7th meeting (extract) held on 11 November 2009, 18 December 2009, TAXUD/C4/MK/). 30 – . While not questioning that premiss, I think it is worth pointing out that that inspector’s statement that he had no evidence that using that procedure might seriously harm the interests of Community producers of E85 is not the same as asserting that there is no such risk. The statement simply means that in the absence of explicit evidence to that effect in the Committee’s conclusions from the examination of the economic conditions the inspector refrained from finding that there was a risk of those interests being seriously harmed, and consequently the presumption of Article 585(1) of the Implementing Regulation was not rebutted. 31 – . See footnote 28 to this Opinion. 32 – . As stated in point 52 of this Opinion, the Court does not have jurisdiction to make such an assessment. I would however venture to observe that the above minutes do not support the Commission’s position. They show that the Committee first of all examined whether there was any evidence that the economic conditions were not satisfied, in which case the presumption established by Article 585(1) of the Implementing Regulation would be rebutted and those conditions would then have to be examined. The Committee found such evidence in the fact that most Member States had stressed that the essential interests of Community producers of bioethanol and E85 would be seriously harmed if the imported bioethanol, be it in the pure form or blended with petrol to make E85, were in direct competition with domestic bioethanol. Consequently, the Committee went on, secondly, to examine the economic conditions. Based on the Commission’s arguments that the importation of large quantities of bioethanol would seriously harm Community bioethanol producers, it concluded that those conditions were not satisfied. It therefore appears that, although the Member States indeed mentioned the essential interests of producers of E85 for the purpose of establishing that there was evidence that those conditions were not met and hence of initiating an examination of them, the Commission referred only to the interests of bioethanol producers for the purpose of that examination in the proper sense. 33 – . See, to that effect, judgment in Dumon and Froment (C‑35/95, EU:C:1998:365, paragraphs 25 and 26 and case-law cited). 34 – . C‑11/05, EU:C:2006:312, paragraph 33. 35 – . Article 504(4) of the Implementing Regulation requires the customs authorities only to take the Committee’s conclusion into account. The Court nevertheless held in Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312, paragraph 27) that if they disregard it they must give their reasons for their decision in that respect. 36 – . For the reasons set out in footnote 31 to this Opinion, in my view this does not seem to be the case. 37 – . C‑11/05, EU:C:2006:312. 38 – . Ibid., paragraph 52. 39 – . The Netherlands Government has proposed a variant on that literal interpretation, according to which ‘Community processors’ would include not only operators who process raw materials or semi-finished products into a compensating product (E85) but also those who process raw materials or semi-finished products in order to obtain other semi-finished products (bioethanol) which are constituents of the compensating product. That interpretation would entail a distinction, which I consider to be unjustified, according to whether the goods processed are raw materials or semi-finished products. Whilst the interests of Community producers of semi-finished products, who ‘process’ raw materials in order to obtain those products, could be taken into account under Article 148(c) of the Customs Code, the interests of Community producers of raw materials, who do not ‘process’ anything, would be ignored. 40 – . Namely the English, Croatian, Latvian, Hungarian, Maltese, Dutch, Slovak and Swedish language versions. 41 – . Namely the Spanish, Czech, Danish, German, Greek, French, Italian, Polish, Portuguese, Romanian and Slovenian language versions. In the English, Latvian, Hungarian, Maltese and Slovak language versions, although the term for ‘processing’ has the same root as that corresponding to ‘processors’, the first of those terms is identical to that referring to ‘processing’ in Article 114(2)(c) of the Customs Code. 42 – . The German language version, for example, uses the term ‘Verarbeitern’ in Article 148(c) of the Customs Code and the word ‘Verarbeitung’ in Article 114(2)(c), second indent, of that code. 43 – . See, to that effect, judgment in Elsacom (C‑294/11, EU:C:2012:382, paragraph 27 and case-law cited). 44 – . First recital of Council Regulation (EEC) No 2763/83 of 26 September 1983 on arrangements permitting goods to be processed under customs control before being put into free circulation, (OJ 1983 L 272, p. 1), repealed by the Customs Code. 45 – . Article 130 of the Customs Code. 46 – . Article 551(1) of the Implementing Regulation. 47 – . See point 47 of this Opinion. 48 – . First and second recitals of Directive 76/119 and first recital 1 of Regulation 2473/86, which followed that directive before being replaced by the Customs Code. 49 – . See points 83 to 91 of this Opinion. 50 – . In the same way, the Kyoto Guidelines (p. 3) state that ‘the application of [the outward processing procedure] may be made subject to the condition that the processing operations envisaged are not detrimental to national interests’. 51 – . Article 211(4)(b) of the new Customs Code. 52 – . Article 503 of the Implementing Regulation. 53 – . Article 504(4) of the Implementing Regulation and judgment in Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312, paragraph 27). 54 – . In my opinion, the scope of the discretion enjoyed by the national customs authorities responsible for applying the Customs Code reflects that enjoyed by the Community authorities when they are required to undertake complex economic assessments (see, in particular, as regards the Commission’s discretion in matters of State aid, judgment in Commission v Scott, C‑290/07 P, EU:C:2010:480, paragraph 66 and case-law cited). 55 – . C‑11/05, EU:C:2006:312, paragraphs 50 to 52. 56 – . Judgment in Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312, paragraph 49). Since the question referred specifically concerned taking account of the interests of producers of raw materials, neither the Court nor the Advocate General had reason also to justify taking account of the interests of producers of finished products similar to the processed products. None of the parties disputed that the economic conditions for processing under customs control applied at the very least to the latter producers. Such a premiss, consensual as it was, was not however required by the wording of Article 133(e) of the Customs Code alone, since the formulation ‘Community producers of similar goods’ could be understood by reference to the products to be processed (namely the intermediate products). In those circumstances, the Court’s acceptance of that premiss therefore seems to me to be consistent with the broad reading of the economic conditions that I am advocating. 57 – . Thus, the Kyoto Guidelines (p. 6) state that ‘a balance must ... be found ... between a maximum reduction in the total production costs of national operators through sub-contracting abroad as opposed to keeping the processing operations for other national operators at the risk of reducing the national industry’s competitiveness’. 58 – . In that context, unlike that of processing under customs control, it is not therefore a question of mitigating the effects of tariff anomalies. 59 – . C‑11/05, EU:C:2006:312, paragraph 49. See point 83 of this Opinion. 60 – . See minutes of the meeting of 11 November 2009 (footnote 28 to this Opinion). 61 – . See point 39 of this Opinion. 62 – . C‑11/05, EU:C:2006:312. 63 – . Judgment in Wacker Werke (C‑142/96, EU:C:1997:386). 64 – . Paragraph 21 of the judgment in Wacker Werke (C‑142/96, EU:C:1997:386) in fact states that such is the case only provided ‘there is nothing to indicate that the prices charged by the two traders respectively were influenced by the business links between them’. The acceptance of such a restriction seems to echo the Opinion of Advocate General Tesauro in Wacker Werke (C‑142/96, EU:C:1997:217, point 15), which stated more explicitly that ‘i . 65 – . Kyoto Guidelines, p. 6 (emphasis added). 66 – . See points 21 and 23 of this Opinion. 67 – . See footnote 6 to this Opinion. 68 – . Emphasis added. 69 – . Recital 15 of the new Customs Code mentions in that regard only that ‘customs procedures should be merged or aligned ...’. 70 – . In the absence of such indications, those conditions are deemed to be satisfied (Article 585(5) of the Implementing Regulation). 71 – . According to settled case-law, the Court cannot, at the request of one party to the main proceedings, examine questions which have not been submitted to it by the national court (see, in particular, judgment in Slob, C‑236/02, EU:C:2004:94, paragraph 29 and case-law cited). However, the Court has already held that that principle does not preclude examination of the possibility of an abuse of EU law, even where this is not formally raised by the national court, for the purpose of providing that court with elements of interpretation which may be of assistance in adjudicating on the case before it (see judgment in ING. AUER, C‑251/06, EU:C:2007:658, paragraphs 38 and 39; see also, to that effect, judgment in Agip Petroli, C‑456/04, EU:C:2006:241, paragraphs 18 to 24). 72 – . Council Regulation of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1). Article 4(3) of that regulation provides that ‘acts which are established to have as their purpose the obtaining of an advantage contrary to the objectives of the Community law applicable in the case by artificially creating the conditions required for obtaining that advantage shall result, as the case shall be, either in failure to obtain the advantage or in its withdrawal’. 73 – . See, in particular, judgment in Halifax and Others (C‑255/02, EU:C:2006:121, paragraph 75). 74 – . See, in particular, judgments in Emsland-Stärke (C‑110/99, EU:C:2000:695, paragraph 52) and Vonk Dairy Products (C‑279/05, EU:C:2007:18, paragraph 33). 75 – . See, in particular, judgments in Pometon (C‑158/08, EU:C:2009:349, paragraph 26) and Cimmino and Others (C‑607/13, EU:C:2015:448, paragraph 60). 76 – . See point 40 of this Opinion. 77 – . The addition of petrol overcomes, in particular, the cold starting difficulties associated with the use of pure bioethanol (see Ballerini, D., ‘Les biocarburants: État des lieux, perspectives et enjeux du développement’, IFP Publications, éd. Technip, Paris, 2006, p. 112). See, in that regard, judgment in Roquette Frères (C‑114/99, EU:C:2000:568, paragraph 19), where, in the matter of export refunds on agricultural products, the Court held that ‘a The Court nevertheless held in the judgment in Eichsfelder Schlachtbetrieb (C‑515/03, EU:C:2005:491, paragraphs 41 and 42) that the existence of substantial processing or working within the meaning of Article 24 of the Customs Code was no barrier to the existence of an abuse of law if the if the elements constituting such abuse were established.