61981CJ0231_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 231/81
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SEVENTH SENATE OF THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) WURZBURG
AND
H . WEIDENMANN GMBH & CO .
INTERVENER : BUNDESMINISTER DER FINANZEN ( FEDERAL MINISTER OF FINANCE )
Subject of the case
ON THE INTERPRETATION OF REGULATION ( EEC ) NO 3004/75 OF THE COUNCIL OF 17 NOVEMBER 1975 OPENING PREFERENTIAL TARIFFS FOR CERTAIN TEXTILE PRODUCTS ORIGINATING IN DEVELOPING COUNTRIES ( OFFICIAL JOURNAL L 310, P . 24 ) AND COUNCIL REGULATION ( EEC ) NO 3022/76 OF 13 DECEMBER 1976 OPENING, ALLOCATING AND PROVIDING FOR THE ADMINISTRATION OF COMMUNITY TARIFF PREFERENCES FOR TEXTILE PRODUCTS ORIGINATING IN DEVELOPING COUNTRIES AND TERRITORIES ( OFFICIAL JOURNAL L 349, P . 69 ),
Grounds
1 BY AN ORDER OF 10 JULY 1981 WHICH WAS RECEIVED AT THE COURT ON 10 AUGUST 1981 THE BUNDESFINANZHOF ( FEDERAL FINANCE COURT ) REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE TREATY THREE QUESTIONS CONCERNING THE INTERPRETATION OF REGULATION ( EEC ) NO 3004/75 OF THE COUNCIL OF 17 NOVEMBER 1975 OPENING PREFERENTIAL TARIFFS FOR CERTAIN TEXTILE PRODUCTS ORIGINATING IN DEVELOPING COUNTRIES ( OFFICIAL JOURNAL L 310, P . 24 ) AND COUNCIL REGULATION ( EEC ) NO 3022/76 OF 13 DECEMBER 1976 OPENING, ALLOCATING AND PROVIDING FOR THE ADMINISTRATION OF COMMUNITY TARIFF REFERENCES FOR TEXTILE PRODUCTS ORIGINATING IN DEVELOPING COUNTRIES AND TERRITORIES ( OFFICIAL JOURNAL L 349, P . 69 ).
2 THE REQUEST FOR AN INTERPRETATION WAS MADE IN THE COURSE OF AN ACTION BETWEEN HELLMUTH WEIDENMANN GMBH & CO ., WHO HAD IMPORTED BALES OF WORSTED YARN FABRIC FROM ARGENTINA, AND THE HAUPTZOLLAMT ( PRINCIPAL
CUSTOMS OFFICE ) WURZBURG CONCERNING THE LATTER ' S REFUSAL TO EXEMPT THE IMPORTED GOODS FROM CUSTOMS DUTIES PURSUANT TO THE REGULATIONS REFERRED TO ABOVE .
3 ACCORDING TO THE HAUPTZOLLAMT WEIDENMANN DID NOT PRODUCE THE CERTIFICATE OF ORIGIN FOR THE GOODS UNTIL 2 FEBRUARY 1977, ALTHOUGH THEY WERE IMPORTED ON 20 DECEMBER 1976 AND THE CUSTOMS AUTHORITIES HAD REQUESTED THAT THE CERTIFICATE OF ORIGIN BE PRODUCED BY 15 JANUARY 1977 PURSUANT TO DIRECTION C OF THE GERMAN GEBRAUCHSZOLLTARIF ( WORKING TARIFF ), ACCORDING TO WHICH A PREFERENTIAL DUTY MAY NOT BE GRANTED UNLESS A CERTIFICATE OF ORIGIN HAS BEEN PRODUCED PRIOR TO THAT DATE .
4 REGULATION NO 3004/75 PROVIDED FOR THE SUSPENSION OF CUSTOMS DUTIES ON SOME PRODUCTS ORIGINATING IN CERTAIN COUNTRIES FROM 1 JANUARY TO 31 DECEMBER 1976 . SINCE THE IMPORTATION IN QUESTION MET THE CONDITIONS LAID DOWN IN THAT REGULATION THE QUESTION AROSE WHETHER IT WAS WITHIN THE MAXIMUM AMOUNT FOR WHICH CUSTOMS DUTIES WERE SUSPENDED AND WHETHER IT FELL WITHIN THE PERIOD DURING WHICH A QUANTITY OF GOODS COULD BE IMPORTED FREE OF DUTY . ARTICLE 3 ( 1 ) OF REGULATION NO 3004/75 PROVIDED THAT IN ORDER TO DETERMINE WHEN THE MAXIMUM AMOUNT HAD BEEN REACHED : ' ' IMPORTS OF THE PRODUCTS IN QUESTION SHALL BE ACTUALLY CHARGED AGAINST THE COMMUNITY CEILINGS AND MAXIMUM AMOUNTS AS AND WHEN THE PRODUCTS ARE ENTERED FOR HOME USE AND PROVIDED THAT THEY ARE ACCOMPANIED BY A CERTIFICATE OF ORIGIN . ' '
ARTICLE 3 ( 2 ) STIPULATED THAT : ' ' GOODS MAY BE CHARGED AGAINST A CEILING OR MAXIMUM AMOUNT ONLY IF THE CERTIFICATE OF ORIGIN . . . IS PRESENTED BEFORE THE DATE ON WHICH THE LEVYING OF DUTIES IS RE-INTRODUCED . ' '
5 THAT IS THE LEGAL BACKGROUND TO THE DISPUTE SUBMITTED IN THE LAST INSTANCE TO THE BUNDESFINANZHOF, WHICH DECIDED TO REFER TO THE COURT FOR A PRELIMINARY RULING THE FOLLOWING THREE QUESTIONS :
' ' 1 . IS IT POSSIBLE FOR THE SUSPENSION OF CUSTOMS DUTIES PURSUANT TO ARTICLE 1 OF REGULATION ( EEC ) NO 3004/75 TO APPLY IN THE CASE OF GOODS WHICH WERE IN FACT IMPORTED, PRESENTED AND ENTERED FOR HOME USE IN 1976 BUT FOR WHICH THE CERTIFICATE OF ORIGIN WAS NOT PRODUCED UNTIL FEBRUARY 1977?
2.IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE : IS THAT ALSO THE CASE IF PRODUCTION OF THE CERTIFICATE OF ORIGIN IN 1977 WAS PERMISSIBLE, BUT ONLY EARLIER - ON OR BEFORE 15 JANUARY 1977?
3.IF THE ANSWER TO QUESTION 1 IS IN THE NEGATIVE : IS IT POSSIBLE FOR THE SUSPENSION OF CUSTOMS DUTIES PURSUANT TO ARTICLE 1 OF REGULATION ( EEC ) NO 3022/76 TO APPLY IN THE CASE OF GOODS WHICH WERE IN FACT IMPORTED, PRESENTED AND ENTERED FOR HOME USE IN 1976 BUT FOR WHICH THE CERTIFICATE OF ORIGIN WAS PRODUCED IN 1977?
' '
FIRST QUESTION
6 THE FIRST QUESTION RAISED BY THE BUNDESFINANZHOF ASKS THE COURT WHETHER, THE REGULATIONS BEING SILENT ON THE SUBJECT, A CERTIFICATE OF ORIGIN PRESENTED AFTER GOODS ELIGIBLE FOR THE PREFERENTIAL TARIFFS INTRODUCED BY THE COMMUNITY HAVE BEEN IMPORTED, PRESENTED AND ENTERED FOR HOME USE IN 1976 MAY BE TAKEN INTO ACCOUNT AS REGARDS THE CUSTOMS DUTIES SUSPENDED FROM 1 JANUARY TO 31 DECEMBER 1976 BY REGULATION NO 3004/75 IF THE CERTIFICATE WAS NOT PRODUCED UNTIL FEBRUARY 1977 .
7 THE SYSTEM OF TARIFF PREFERENCES GRANTED BY THE COMMUNITY WHICH WAS INTRODUCED BY THE ABOVE-MENTIONED REGULATION IS ONE OF THE MEASURES ADOPTED BY THE COMMUNITY AS PART OF THE TRADE POLICY OF DEVELOPMENT AID AGREED UPON BY THE UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT FOR THE ADOPTION OF A POLICY OF DEVELOPMENT COOPERATION ON A WORLD-WIDE SCALE COMPRISING IN PARTICULAR THE IMPROVEMENT OF TARIFF PREFERENCES WITH THE AIM OF ACHIEVING A STEADY INCREASE IN IMPORTS OF MANUFACTURED PRODUCTS FROM DEVELOPING COUNTRIES .
8 CONSIDERED IN THAT CONTEXT, THE SYSTEM OF TARIFF PREFERENCES, WHILST IT MAY INVOLVE THE REQUIREMENT OF A CERTIFICATE OF ORIGIN IN ORDER TO JUSTIFY THE APPLICATION OF PREFERENTIAL RATES, MUST NOT BE UNDERSTOOD AS AUTHORIZING EXCESSIVELY RESTRICTIVE ADMINISTRATIVE MEASURES IN THE ACTUAL MACHINERY FOR CHECKING THE ORIGIN OF THE GOODS .
9 THE WAY IN WHICH REGULATION NO 3004/75 WAS DRAFTED REFLECTS THAT CONCERN . THE WORDING OF ARTICLE 3 ( 1 ) OF REGULATION NO 3004/75 DOES NOT INDICATE WHETHER THE CERTIFICATE OF ORIGIN MUST BE PRODUCED AT THE SAME TIME AS THE GOODS ARE DECLARED FOR CUSTOMS PURPOSES, BUT PARAGRAPH 2 OF THE SAME ARTICLE
SHOWS THAT THE TWO NEED NOT COINCIDE, FOR IT STATES THAT : ' ' GOODS MAY BE CHARGED AGAINST A CEILING . . . ONLY IF THE CERTIFICATE OF ORIGIN IS PRESENTED BEFORE THE DATE ON WHICH THE LEVYING OF DUTIES IS REINTRODUCED . ' '
IN THE LIGHT OF THOSE PROVISIONS AND THE AIMS DESCRIBED ABOVE, IT MAY BE CONCLUDED THAT THE CERTIFICATE MAY BE PRESENTED AFTER THE GOODS HAVE BEEN ENTERED FOR CUSTOMS PURPOSES, PROVIDED THAT IT IS PRESENTED BEFORE THE LEVYING OF DUTIES IS REINTRODUCED .
10 AS FAR AS THE TIME-LIMIT FOR PRODUCING THE CERTIFICATE OF ORIGIN IS CONCERNED, REFERENCE MUST BE MADE, SINCE REGULATION NO 3004/75 IS SILENT ON THE POINT, TO THE SUPPLEMENTARY RULES CONTAINED IN REGULATION ( EEC ) NO 3214/75 OF THE COMMISSION OF 3 DECEMBER 1975 ( OFFICIAL JOURNAL L 323, P . 1 ). THE COMBINED PROVISIONS OF ARTICLES 7 AND 11 OF THAT REGULATION INDICATE THAT THE CERTIFICATE OF ORIGIN :
( I ) IS NORMALLY VALID FOR A PERIOD OF FIVE MONTHS AFTER THE DATE OF ISSUE BY THE RESPONSIBLE GOVERNMENT AUTHORITY OF THE EXPORTING BENEFICIARY COUNTRY ;
( II)IS VALID FOR UP TO 10 MONTHS WHEN THE PRODUCTS PASS THROUGH THE TERRITORY OF ONE OR MORE COUNTRIES IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 5 ( 1 ) ( B );
( III)MAY BE PRESENTED ONLY WITHIN ITS PERIOD OF VALIDITY, SAVE IN THE CASE OF FORCE MAJEURE OR IN EXCEPTIONAL CIRCUMSTANCES ;
( IV)MAY, APART FROM THOSE TWO EXCEPTIONS, BE ACCEPTED BY THE COMPETENT CUSTOMS AUTHORITIES WHERE THE PRODUCTS HAVE BEEN PRESENTED TO THEM BEFORE THE EXPIRY OF THE CERTIFICATE ' S VALIDITY .
11 THOSE CONSIDERATIONS, WHICH ARE PRINCIPALLY CONCERNED WITH THE CERTIFICATE ' S PERIOD OF VALIDITY, ARE NOT SUFFICIENT TO ANSWER THE PRECISE QUESTION RAISED BY THE NATIONAL COURT . THEY DO SHOW, HOWEVER, THAT THE CERTIFICATE OF ORIGIN MAY PROPERLY BE PRODUCED WITHIN A PERIOD EXTENDING SEVERAL MONTHS AFTER IMPORTATION HAS BEEN EFFECTED, THUS ENTITLING TRADERS TO BELIEVE THAT THEY MAY PRODUCE ANY CERTIFICATE FOR AS LONG AS IT REMAINS VALID AS DESCRIBED ABOVE .
12 IN THE ABSENCE OF ANY EXPRESS PROVISION TO THE CONTRARY AN IMPORTER MIGHT NOT BE DENIED THE RIGHT TO PRODUCE A VALID CERTIFICATE AFTER THE EXPIRY OF THE
PERIOD DURING WHICH REGULATION NO 3004/75 WAS IN FORCE PROVIDED THAT THE CERTIFICATE RELATED TO A TRANSACTION EFFECTED DURING THAT TIME . IF THE COMMISSION DID NOT REINTRODUCE THE DUTIES IN THE YEAR IN QUESTION PRODUCTION OF THE CERTIFICATE EX POST FACTO IN THE EARLY MONTHS OF THE FOLLOWING YEAR COULD NOT, ANY MORE THAN SUBSEQUENT PRODUCTION IN THE SAME YEAR, PREJUDICE THE EFFECTIVENESS OF THE REGULATION, A FORTIORI AS THE GOODS MIGHT BE CHARGED AGAINST A CEILING AS SOON AS THEY WERE ENTERED FOR HOME USE . SUCH REASONING IS JUSTIFIED IN THE PRESENT INSTANCE BY THE FACT THAT THE CEILINGS WERE NOT DECLARED TO HAVE BEEN REACHED IN 1976 AND THAT THE SUSPENSION OF DUTIES CONTINUED INTO 1977 WITHOUT INTERRUPTION OR ALTERATION .
13 THE REPLY TO BE GIVEN TO THE NATIONAL COURT IS THEREFORE THAT THE SUSPENSION OF CUSTOMS DUTIES PURSUANT TO ARTICLE 1 OF REGULATION ( EEC ) NO 3004/75 OF THE COUNCIL MIGHT APPLY IN THE CASE OF GOODS WHICH WERE IMPORTED, PRESENTED AND ENTERED FOR HOME USE IN 1976 EVEN THOUGH THE CERTIFICATE OF ORIGIN WAS PRODUCED AFTER THAT REGULATION CEASED TO APPLY, PROVIDED THAT THE CERTIFICATE WAS VALID AND WAS PRODUCED IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN ARTICLES 7 AND 11 OF REGULATION NO 3214/75 OF THE COMMISSION .
SECOND QUESTION
14 IN VIEW OF THE REPLY GIVEN TO THE FIRST QUESTION THE REPLY TO THE SECOND QUESTION MUST BE THAT SINCE THE VALIDITY OF A CERTIFICATE OF ORIGIN IS A MATTER OF FACT THE CERTIFICATE MUST BE ACCEPTED IF IT SATISFIES COMMUNITY REQUIREMENTS SUCH AS THOSE DESCRIBED ABOVE, NOTWITHSTANDING ANY REQUIREMENT WHICH THE NATIONAL CUSTOMS AUTHORITIES HAVE THOUGHT IT NECESSARY TO IMPOSE UNILATERALLY . ARTICLE 4 ( 1 ) OF REGULATION NO 3004/75 PROVIDES, IN FACT, THAT IT IS FOR THE COMMISSION, IN CLOSE COOPERATION WITH THE MEMBER STATES, TO TAKE ALL NECESSARY MEASURES TO ENSURE THAT THE REGULATION IS APPLIED . SINCE THE COMMUNITY REGULATIONS ARE COMPLETE IN THEMSELVES IT IS NOT NECESSARY TO HAVE RECOURSE TO ANY NATIONAL RULES ADOPTED UNILATERALLY WHICH ARE INTENDED TO GOVERN THE WAY IN WHICH THEY ARE TO BE IMPLEMENTED .
THIRD QUESTION
15 SINCE THE REPLY TO THE FIRST QUESTION IS IN THE AFFIRMATIVE IT IS NOT NECESSARY TO REPLY TO THE THIRD QUESTION .
Decision on costs
COSTS
16 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION AS TO COSTS IN A MATTER FOR THAT COURT .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BUNDESFINANZHOF, HEREBY RULES :
1 . THE SUSPENSION OF CUSTOMS DUTIES PURSUANT TO ARTICLE 1 OF REGULATION ( EEC ) NO 3004/75 OF THE COUNCIL MIGHT APPLY IN THE CASE OF GOODS WHICH WERE IMPORTED, PRESENTED AND ENTERED FOR HOME USE IN 1976 EVEN THOUGH THE CERTIFICATE OF ORIGIN WAS PRODUCED AFTER THAT REGULATION CEASED TO APPLY, PROVIDED THAT THE CERTIFICATE WAS VALID AND THAT IT WAS PRODUCED IN ACCORDANCE WITH THE CONDITIONS LAID DOWN IN ARTICLES 7 AND 11 OF REGULATION NO 3214/75 OF THE COMMISSION .
2.A VALID CERTIFICATE OF ORIGIN MUST BE ACCEPTED NOTWITHSTANDING ANY REQUIREMENT WHICH THE NATIONAL CUSTOMS AUTHORITIES HAVE THOUGHT IT NECESSARY TO IMPOSE UNILATERALLY .