61981C0231
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
DELIVERED ON 29 APRIL 1982
My Lords,
Council Regulation No 3004/75 of 17 November 1975 (OJ L 310/24, 29. 11. 1975) provided that customs duties on the products listed in Annex A from the producing countries listed in Annex B thereof should be suspended from 1 January to 31 December 1976.
The suspension of customs duties effected by Regulation No 3004/75 was limited by quantity; when the limit was reached, the Commission could at any time reintroduce customs duties until the end of the period of suspension (see Article 2). For the purpose of determining when the limit had been exceeded, Article 3 (1) provided that imports should be “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) states that the goods may be charged against a ceiling or a maximum amount only if the certificate of origin is presented before the date on which the levying of customs duties is reintroduced.
Commission Regulation No 3214/75 of 3 December 1975 (OJ L 323/1, 15. 12. 1975) set out detailed rules for the purpose of implementing several regulations opening preferential tariffs, of which one was Regulation No 3004/75. Article 6 of the former provides that goods are eligible to benefit from a tariff preference on production of a certificate of origin. Under Article 7 the certificate of origin must be produced to the Community customs office at which the goods are presented within five months of the date of issue by the responsible governmental authority of the exporting country, though in the circumstances specified in Article 11 the competent customs authority could accept a certificate presented outside the time-limit so imposed.
Council Regulation No 3022/76 of 13 December 1976 (OJ L 349/69, 20. 12. 1976), which came into force on 1 January 1977, provided that customs duties should be suspended from 1 January to 31 December 1977.
H. Weidenmann GmbH & Co. (“Weidenmann”) imported a consignment of 41 bales of worsted yarn fabric falling under subheading 53.11 B II of the Common Customs Tariff (“the CCT”) from Argentina. The goods were mentioned in Annex A of Regulation No 3004/75 and Argentina is one of the countries mentioned in Annex B. They were entered for home use, in Germany, on 20 December 1976, but, although Argentina was entered in the customs declaration as the country of origin, no certificate of origin was submitted. An undertaking to produce a certificate of origin later was, however, given. On 21 December the German customs authorities adopted a decision provisionally exempting the goods from duty and levying only import turnover tax, but they required Weidenmann to produce “evidence of eligibility for preference” (i.e. the certificate of origin) by 15 January 1977. This date was chosen because, it appears, a circular issued by the German customs authorities (Direction C of the Gebrauchszolltarif) said that preferential duties could not be granted after that date.
Weidenmann submitted the certificate of origin under cover of a letter dated 2 February 1977. The German customs authorities took the view that this was too late and levied the duty due on the goods under the CCT (this came to DM 5840.99). Weidenmann challenged the decision and the Finanzgericht annulled it on the grounds that the conditions for exemption from customs duty had been fulfilled, even though the certificate of origin had been produced after the end of 1976, and the circular could not restrict the operation of the tariff preference. The customs authorities appealed to the Bundesfinanzhof.
The Bundesfinanzhof seems to have taken the view that, in the scheme of the regulation, exemption from customs duties applies only if the goods can be charged against the Community ceilings and maximum amounts. In consequence, if they cannot be charged because no certificate of origin has been produced, there is no entitlement to exemption and the customs duties are to be levied. It was of opinion that the real question in this case is whether the necessary conditions had to be fulfilled during the period provided for in Regulation No 3004/75 or whether the certificate of origin could be produced after the period had expired.
The Bundesfinanzhof accordingly referred the following questions to the Court:
“1.
May the suspension of customs duties pursuant to Article 1 of Regulation (EEC) No 3004/75 apply in the case of goods which were in fact imported, presented and entered for home use in 1976 but for which the certifícate 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 the certificate of origin was indeed produced in 1977 but could have been produced earlier, up to 15 January 1977?
3.
If the answer to Question 1 is in the negative: May the suspension of the customs duties pursuant to Article 1 of Regulation (EEC) No 3022/76 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?”
The problems in this case arise partly because the conditions upon which the tariff preference can be claimed have not been set out clearly and expressly in Regulation No 3004/75, and partly because, instead of the period of application of that regulation merely being extended, a new regulation was issued (No 3022/76) covering a subsequent period, which was not identical in its terms. I do not find the answer to the questions raised an easy one. Fortunately the issue in respect of later years may have been resolved by the provisions of Article 6 of Directive 79/695/EEC (OJ L 205/19, 13. 8. 1979) but that is no help in the present case.
A preliminary question arises as to the extent of the suspension of duties. Is it, as Article 1 (1) of Regulation No 3004/75 indicates, a toul suspension of duties until duties are reintroduced by a regulation of the Commission, when either the ceiling in respect of all relevant countries, or a maximum amount in respect of an individual country, is reached pursuant to Articles 2 and 4 (2) of the regulation; or is it a suspension of duties only within the ceilings and maximum amounts specified, as Article 1 (3) and (4) suggests? In my view it is the former and despite the opening words of Article 1 (3) (“this suspension shall be granted within a Community ceiling”), Article 1 (3) and (4) is doing no more than defining the ceiling and the maximum amount which empower the Commission to reintroduce duties during 1976 if they are reached.
On the fact of it there is no express requirement in Regulation No 3004/75 as to how entitlement to exemption from duty is established, other than by showing that the goods are listed in Annex A and that they originate in countries listed in Annex B.
The stipulations in Article 3 ex facie are dealing with the way in which goods are charged against ceilings and maximum amounts. Imports are “actually charged” against ceilings “as and when the products are entered for home use and provided that they are accompanied by a certificate of origin pursuant to the rules laid down in Article 1 (2) ... Goods may be charged ... only if the certificate of origin ... is presented before the date on which the levying of duties is reintroduced”.
None the less it seems clear that there is a link between exemption from duty and charging against ceilings. Such charging presupposes exemption from duty, and, if exemption can be obtained without charging against ceilings, quantities cannot, it would seem, be fully monitored and the Commission's opportunity to reintroduce duties is affected.
The ceiling has obviously to be calculated on quantities imported during the year 1976, and during that period imports are taken into account “as and when” they are presented for home use, or, as in the French text, “au fur et à mesure que ces produits sont présentés en douane, sous le couvert de déclarations de mise à la consommation”. It is clearly arguable that the condition “provided that they are accompanied by a certificate of origin” must be read strictly. An entry for home use will not be taken into account unless a certificate of origin is physically with the goods. I would not read the words so strictly but would accept that a certificate of origin presented later than the arrival and entry of the goods should be sufficient. Such an approach is, moreover, supported by Article 3 (2) as I read it. That paragraph of the article seems to me to contemplate that the certificate may be presented separately from the arrival and entry of the goods (so long as it is presented before the date on which the levying of duties is reintroduced) as otherwise, if both had to be made and presented together, one would expect the limitation to refer to entry for home use or the arrival of the goods rather than the presentation of the certificate. Accordingly I take the view that the goods may be entered for home use and the certificate presented later, at any rate during 1976, the period covered by the regulation.
If the certificate is presented later than 1976, then the goods cannot be charged against ceilings for 1976 so as to permit retroactive levying of duties. It is strongly arguable that because of the link between charging and exemption of duty, this must mean that there can be no exemption from duty if the certificate is presented after the end of the year — in other words the claim for exemption is only perfected when the certificate is presented, the exemption depends on the goods being charged against a ceiling. If it is presented after the end of the year, the regulation, and the tariff preference under that regulation, have expired and there can be no relation back so as to complete the entitlement.
Despite the strength of this argument I have in the end come to the opposite conclusion. Duties are totally suspended on the goods in question. “Charging” is required so that it may be known when the ceiling is reached. Once the ceiling is reached duties may be reimposed by regulation. Once they are reimposed no further claim for benefit may be perfected by the presentation of a certificate. If duties have not been reimposed then a certificate of origin may be presented in respect of those goods, not only later during 1976, but after the end of that period. I consider that if it had been intended to take away the benefit of exemption from duty from the goods before duties were reimposed, if the certificate were not presented within the period, then clearer language would have been used in the article dealing with the suspension of duties than has been used in the article dealing with charging against ceilings. This conclusion is supported by the fact that (even though I can see practical difficulties for the administration of the charging provisions) the Commission does not suggest that an opportunity to present a certificate late undermines the purpose of the charging provisions; on the contrary the Commission contends for flexibility in the admission of goods from the countries in question free of duties. The German customs authorities themselves in part accepted this approach as they were willing to treat a certificate given during the first two weeks of January 1977 as being permissible.
It must, however, be considered whether any other provisions conflict with this construction of the regulation.
Article 1 (2) of Regulation No 3004/75 provides that “the concept of originating products” is to be determined in accordance with the procedure laid down in Article 14 of Regulation No 802/68 of 27 June 1968 (OJ L 148/11, 28. 6. 1968). That article sets up the procedure by which rules for applying the definition to the origin of goods shall be established. The relevant rules are to be found in Regulation No 3214/75. Article 6 of the latter regulation provides that goods are to be eligible, on importation into the Community, to benefit from certain tax preferences on production of a certificate of origin Form A. This seems to me to be dealing with the method of proving the country of origin for the purpose of a tariff preference and does not create the right to the preference. It does not deal with the present question. By Article 7 the certificate must be produced within five months (or 10 months as the case may be) of the date of issue by the responsible authority of the exporting country. That deals with the validity of the certificate and does not directly assist on the question whether a certificate may be presented after a preference period has come to an end in respect of goods entered during the period. By Article 8, certificates are to be produced in accordance with the procedures laid down by the importing State. In view of the provisions of Article 7, I do not consider that “procedures” in this regulation covers provisions as to the period of time in which certificates may be presented but, in any event, such rules as to time cannot prevail over the provisions of Article 7. Whether a valid certificate can be presented after the end of the year depends in my opinion on a proper construction of Regulation No 3004/75 and not on national provisions which could in theory vary widely. Such discretion as is given goes the other way — Member Sutes may extend the 5 or 10-month period in e.g. exceptional circumstances or where the goods have, but the certificate has not, been presented within the 5 or 10-month period. Accordingly I do not consider that any provision of Regulation No 3214/75 conflicts with the conclusions to which I have come.
So far as the second question is concerned, it does not seem to me that, so long as the certifícate is valid under Article 7 of Regulation No 3214/75, it can be rejected because it is not presented by a date fixed by a national customs authority either during the year in question or subsequently, or because it is presented later than it could have been presented.
The third question asked whether goods entered for home use in 1976, but in respect of which the certificate is not presented until a date in 1977, can claim exemption under Regulation No 3022/76.
Article 1 of that regulation totally suspends duties on certain goods originating from specified countries during the period beginning on 1 January 1977. They are by Article 9 to be charged against ceilings in a similar way to that imposed by Article 3 of the earlier regulation. Duties normally become chargeable on import, and the goods are chargeable against ceilings under these regulations when entered for home use. If the goods are completely entered for home use in 1976, then they cannot in my view claim the benefit of Regulation No 3022/76. It does not seem to me possible, in the absence of clear provisions, to add together an entry for home use under one regulation and a presentation of a certificate under a subsequent regulation covering a different period, so as to free the imports from duty. Whether the goods are so entered for home use falls to be decided by the national court in the light of national customs law and practice. If, therefore, goods, which are dealt with in the same way as the goods in the present case, are not treated as entered for home use until 1977 (i.e. the entry is deferred until the certificate is produced) then they may claim the benefit of Regulation No 3022/76. Whether, as has been suggested, an entry in 1976 can be withdrawn and a new entry made in 1977 could be substituted, would be for the national court to decide.
The questions referred should therefore, in my opinion, be answered on the following lines.
1.and 2.
It is possible for the suspension of customs duties, pursuant to Article 1 of Regulation 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 so long as the certificate is presented within the periods applicable by virtue of Article 7 of Regulation No 3214/75, or is accepted pursuant to Article 11 of that regulation.
Alternatively
3.
If the answers to Question 1 or 2 had been in the negative, it would not be possible for the suspension of customs duties pursuant to Article 1 of Regulation No 3022/76 to apply in the case of goods which were in fact imponed, presented and entered for home use in 1976 but for which the certificate of origin was produced in 1977. Whether entry for home use was completed in 1976 or in 1977, and whether withdrawal of an entry in 1976 and further entry in 1977 is possible, is for the national court to decide on the basis of national customs law and procedure.