Opinion of the Advocate General — ECLI:EU:C:2001:85
Date: 2001-02-08
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Common customs tariff;Customs Union
Procedure: Reference for a preliminary ruling
Origin: France

Summary of observations submitted to the Court 15. Mr Balguerie and others state that, in order for an importer to benefit from temporary suspension, the fresh or dried dates must be intended to be packed for retail sale in direct packings having a net content of 11 kg or less. 16. It is not in dispute, nor can it be, that the dates in question have been prepared for retail sale in 7 kg boxes or in 1 kg plastic trays, following sorting and checking, which satisfies the requirements as to end-use. 17. In this respect they submit that even if the dates were imported in packings containing less than 11 kg, they were repackaged in order to satisfy the demands of their customers. 18. Since the goods have been repackaged, Regulation No 4142/87 has been complied with, and the products should therefore be granted temporary suspension of customs duty. 19. The French Government points, firstly, to the general Community rules and claims that, given that the threshold for distinguishing between loose and packaged goods has been set at 11 kg, it follows that when the dates are imported in packings containing less than 11 kg, they are already packaged for retail sale. They cannot, therefore, qualify for the tariff suspension intended for loose products. The process of repackaging in fact carried out is therefore irrelevant. 20. The Commission states that it is apparently not in dispute that the products in question were fresh or dried dates, and that they were packaged for retail sale in direct packings having a net content of 11 kg or less. It states that the question whether the contents prior to packaging already weigh 11 kg or less is not addressed by the wording of the tariff headings under which they have been declared. 21. Consequently, according to the Commission, the imported products are covered by the wording of the tariff headings under which they were declared. 22. It is not the purpose of the repackaging of dates to compromise the end-use for which they have been declared, and it may even be explained, in the Commission's view, by the requirements of retail selling. 23. Regulation No 4142/87 does not prohibit such handling, but is intended to ensure effective control of the end-use. 24. The Commission considers, lastly, that if the national court finds, on the basis of the circumstances of the case, that there has been manipulation or fraud or even action likely to compromise the grant of favourable tariff treatment by reason of the end-use of the dates, such circumstances should not lead simply to a finding that the dates were already put up in direct packings having a content of 11 kg or less. That fact alone is, in the Commission's view, irrelevant for the grant of the tariff preference. IV - Assessment 25. The question asked by the Cour d'appel de Paris is whether Commission Regulation No 4142/87 of 9 December 1987, and the conditions imposed for its application in regard to imports of dates under the procedure for the suspension of customs duties by reason of the end-use of the goods, preclude such goods being imported in original packings with a content of 11 kg or less. 26. Let us therefore consider, first, whether Regulation No 4142/87 provides the answer to that question. 27. This regulation, the relevant provisions of which I have set out above, introduces control mechanisms intended to ensure that goods - of whatever type - which receive a favourable import arrangement by virtue of their end-use are in fact put to that use. These mechanisms include, amongst others, a written authorisation, the grant of which is subject to an obligation to keep records so as to enable the competent authorities to carry out the necessary checks. 28. It is, of course, for the national court to determine whether all of those conditions are satisfied in this case. 29. I do not see, however, any provision of the regulation which provides an answer to the question whether dates intended for packing for retail sale in direct packings with a content of 11 kg or less must be imported in packings of more than 11 kg in order to be eligible for suspension of the 12% duty set by the Common Customs Tariff. 30. The national court also asks whether the conditions imposed for the application of Regulation No 4142/87 are such as to provide an answer to the question asked. 31. Not having found any text setting out such conditions or implementing measures, I take the view that I must refer, as I invite the French Government to do, to the Council regulations establishing the suspension of duty for certain categories of dates under the Common Customs Tariff. 32. In doing so I find, firstly, that Regulation No 1517/91 and the successive regulations renewing this suspension (6) do not refer to dates for retail sale in direct packings having a net content not exceeding 11 kg, (7) but to those for packing for retail sale into packages not exceeding this weight. 33. Dates intended for sale in shops in their original packaging are therefore excluded from the tariff suspension, even if that packaging contains only 11 kg, or less. 34. Secondly, the text does not use the phrase dates for packaging or repackaging for retail sale, either. The situation arising in the main action, that is, a repackaging, is not, therefore, covered by the text of the Council regulation. 35. Conversely, however, the text does not state that the dates in question must be imported in packages weighing more than 11 kg. 36. May one, nevertheless, assume that the Council intended this to be the case? 37. The French Government, the Tribunal de grande instance de Melun and the Cour d'appel de Paris consider that it is this interpretation that should be upheld, since only loose dates or dates in large packages necessitate packaging, that is, require the importer in fact to carry out packaging before the dates can be sold by retail in packings not exceeding 11 kg. 38. I agree that it is highly likely that the Council started from the premiss that dates must be presented to customs in quantities greater than 11 kg, especially as it is in this context that the phrase for packing for retail sale is best understood. 39. Nevertheless, the Council omitted to include such a condition in the text. 40. It seems to me necessary in any event to consider, in addition to the wording of the suspension measure, its aim. 41. In this respect the Commission has drawn our attention to the first two recitals in the preamble to Regulation No 1517/91, and the succeeding regulations, which state as follows: ... production in the Community of the products specified in this regulation is currently inadequate or non-existent; ... producers cannot meet the needs of user industries in the Community; ... in certain cases it is in the interest of the Community to suspend the autonomous Common Customs Tariff. 42. The purpose of the suspension is, therefore, to safeguard the interests of user industries, and the successive Council regulations contain two provisions to this end. 43. Firstly, they suspend the Common Customs Tariff duty in favour of dates, fresh or dried, for the processing industry, (8) other than for the production of alcohol, and, secondly, they suspend this duty, by means of the text in issue in this case, in favour of the packing industry. 44. The French Government told us, in this respect, that: with regard to dates, the subject of this case, at the instigation of France, wishing to support the packing industry for fruits originating in third countries, the suspension arrangement was introduced in 1970 to meet the competitive challenge of pre-packed North African products imported into the Community with suspension of duty. 45. That seems plausible in the light of the wording of the recitals in the preambles to the Council regulations. 46. It seems to be clear, therefore, that, for the aim of the tariff suspension to be achieved, it is enough that the dates are in fact packaged before sale, even if this means repackaging. 47. It follows that, even if the intention of the Council as to the volume of packings in which dates must be presented to customs was otherwise, it is not appropriate to impose a condition which, as we have seen, does not appear in the wording of the provision in question, and which is not required by the aim of the measure. 48. To do otherwise would flout the requirements of legal certainty. 49. It should also be remembered that Regulation No 4142/87 determining the conditions under which certain goods are eligible on import for a favourable tariff arrangement by reason of their end-use establishes control mechanisms intended to ensure that only products which have in fact been packaged or repackaged can benefit from the tariff suspension. The conditions laid down by this regulation must obviously be complied with in their entirety. V - Conclusion 50. I therefore propose that the Court answer the question posed by the Cour d'appel de Paris in the following terms: Commission Regulation (EEC) No 4142/87 of 9 December 1987 determining the conditions under which certain goods are eligible on import for a favourable tariff arrangement by reason of their end-use, and Council Regulation (EEC) No 1421/93 of 7 June 1993 temporarily suspending the autonomous Common Customs Tariff duties on a number of agricultural products do not prevent dates from qualifying for the suspension of customs duty provided for by the regulation solely on the ground that they are imported in original packings having a content of 11 kg or less. 1: - Original language: French. 2: - OJ 1987 L 387, p. 81. 3: - OJ 1991 L 142, p. 7. 4: - Council Regulation of 26 May 1992 temporarily suspending the autonomous Common Customs Tariff duties on a number of agricultural products (OJ 1992 L 151, p. 1). 5: - Council Regulation of 7 June 1993 temporarily suspending the autonomous Common Customs Tariff duties on a number of agricultural products (OJ 1993 L 140, p. 6). 6: - See paragraph 14 above. 7: - That is because these regulations use the phrase of a net content not exceeding 11 kg and not with a net content of 11 kg or less which appears in the reference for a preliminary ruling. Nothing, in my view, attaches to this difference. 8: - Emphasis added. Heading ex 0804 10 00, Taric code 11, 21 (see, for example, Regulation No 1421/93).