61993CC0351_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
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1. In these three cases, of which two concern the import of dried grapes and one the import of Morello cherries, the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry) has referred to the Court for a preliminary ruling a number of questions concerning provisions of regulations fixing minimum prices for the import of agricultural products from non-member countries. In order to avoid serious disturbances on the Community market for certain sensitive products, provision has been made for a minimum import price to be determined for those products and a countervailing charge to be levied where that price is not observed. In the three cases before the Court, the national authorities authorized to implement those rules considered that the minimum import prices had not been observed and required payment of countervailing charges calculated on the basis of reconstructed prices. The questions referred to the Court concern, in particular, the Commission' s power to authorize the competent national authorities to reconstruct the import price, and also the methods of calculation used to reconstruct that price.
For the sake of clarity, I will first consider the facts, the applicable rules and the questions referred in the two cases concerning dried grapes, before considering the case of the Morello cherries.
The dried grapes cases (C-351/93 and C-352/93)
Facts
2. Cases C-351/93 and C-352/93 concern imports of dried grapes from Turkey. Following a detailed investigation, the Netherlands Fiscale Inlichtingen- en Opsporingsdienst (Fiscal Inquiries and Investigations Service) came to the conclusion that there was an organised fraud to evade observance of the minimum import price. The mechanism used was the same in both cases, but the imports took place at different times (1984 and 1989) and different Community regulations apply to them. It is important to explain that these cases have been brought before the courts as test cases, since the fraud was carried out over several years through various companies. The inquiry, which began in 1984, could only be completed in 1989. According to the Minister van Landbouw, Natuurbeheer en Visserij (Minister for Agriculture, Environment and Fisheries), the defendant in the main proceedings, that is due to three reasons. First, questions had been referred to the Court regarding the validity of the regulations used as a basis for levying the countervailing charges on imports (Case 77/86, which I will discuss below). Secondly, the criminal investigation against one of the undertakings concerned, Stolp BV, was still proceeding, in particular in Switzerland. Finally, attempts were first made to combat the fraud concerning the import of dried grapes on a wider basis, since it was thought that there was no point in dismantling an isolated legal construction, where a similar construction could be set up again elsewhere almost immediately.
3. In order to illustrate the mechanism adopted, I will set out in detail the facts of the simpler of the two cases, namely Case C-351/93. It concerns the import of a single consignment of 1 500 12.5 kg boxes of dried grapes "sultanas ° special clean", a total net weight of 18 750 kg, sent from Turkey to Rotterdam on the "Karaman". In the file sent to the Court by the national court are the following documents:
° 11 January 1989: offer or confirmation of sale sent by Stolp International BV (hereafter "Stolp"), established in Bunschoten, to Verkade Kon. BV, of Zaandam. The contract relates to 1 500 cartons at a price of HFL 2.15 per kilo;
° 12 January 1989: confirmation of sale of several consignments of raisins sent by Stolp to Izmir Fig Packers, a company established in Izmir, Turkey; the agreed price is USD 1 050 per tonne (namely below the minimum import price), the delivery terms being "free declared, duty paid, FOT (Free On Truck) Rotterdam";
° 17 January 1989: sales invoice from Izmir Fig Packers to Stolp relating to 1 500 boxes of dried grapes aboard the "Karaman" for an agreed price of USD 1 050 per tonne (below the minimum import price), delivery terms being "ex terminal Rotterdam";
° 17 January 1989, namely on the same date: a sales invoice for the same quantity and quality of dried grapes (still aboard the "Karaman") from Alpaslan Besikcioglu (of Izmir, Turkey) to Fitmay Ltd, a company established in London; the agreed priced is USD 1 200 per tonne, namely above the minimum import price, on terms "CF Rotterdam" (cost and freight Rotterdam);
° 25 January 1989: an invoice from Fitmay to Izmir Fig Packers concerning 18 750 kg of Turkish sultanas at a price of USD 1 212 per tonne, on terms "CF Rotterdam";
° 15 February 1989: a declaration of entry into free circulation of 1 500 boxes of dried grapes on board the "Karaman", made in the name of Fitmay by customs agent Van der Linde, established in Rotterdam; the stated import price is HFL 2 544 per tonne;
° 15 February 1989, namely on that same day: an invoice for the sale of 1 500 boxes "ex Karaman" from Stolp to Verkade, for the agreed price of HFL 2.15 per kilo, namely HFL 2 150 per tonne;
° 21 February 1989: the fiscal investigation is terminated and a countervailing charge is claimed from Mr Van der Linde.
In summary, Alpaslan Besikcioglu (Izmir) sells above the minimum price to Fitmay (London), which carries out the import formalities and resells to Izmir Fig Packers (Izmir). The latter company sells below the import price to Stolp (Netherlands), which resells to Verkade.
It is apparent from the investigation by the Fiscal Inquiries and Investigations Service that Alpaslan Besikcioglu owns 99% of Izmir Fig Packers, the remaining 1% being owned by a Mr Kemal Besikcioglu. The registered office of Alpaslan Besikcioglu is at the same address in Izmir as that of Izmir Fig Packers. Regular transfers are made by Alpaslan Besikcioglu to the London bank account of Izmir Fig Packers in order to make good the deficit resulting from the resale at a loss (in the present case, Izmir Fig Packers bought from Fitmay at a price of USD 1 212 per tonne and resold to Stolp at USD 1 050). At a hearing, the owner and director of Fitmay, a Turkish national, stated that he had agreed to deal with the formalities for the import of raisins into the Community, through the intermediary of Mr Van der Linde, in return for a payment of 1% of the net cost of the goods.
In its decision of 21 February 1989 the Inspecteur der Invoerrechten en Accijnzen (Inspector of Customs and Excise), Rotterdam, fixed the amount of the countervailing charge owed by Mr Van der Linde at HFL 8 329.80. At the request of the College van Beroep voor het Bedrijfsleven, he explained his calculation (letter of 23 March 1989 sent by the Inspector to the President of the College van Beroep) and stated that he had taken as a starting point the price agreed between Izmir Fig Packers and Stolp, converted into guilders at the rate of exchange on 15 February 1989. In order to take account of the sales term "ex terminal Rotterdam", he deducted from the price unloading costs assessed on a flat-rate basis at a given amount per container. The remaining amount, converted into ecus, enabled him to fix the countervailing charged owed per tonne in accordance with Regulation (EEC) No 3519/88, (1) which fixed the rates applicable at the time of entry into free circulation. He then made a complex calculation which enabled him to determine the import price prior to the countervailing charge.
4. In Case C-352/93 the process and the parties involved are exactly the same. The declaration of entry into free circulation is dated 25 June 1984 and relates to the import of 13 containers of raisins (241 900 kg net). The fiscal investigation terminated on 9 February 1989 and a countervailing charge was claimed from Mr Van der Linde. The calculation of the charge is much more complex, having regard to the rules which were in force at the time of importation.
The applicable rules and the questions referred for a preliminary ruling
Case C-352/93 (declaration of entry into free circulation of 25 June 1984)
5. If the rules applicable are considered in chronological order, it can be seen that from 1 April 1977 to 28 February 1986 the basic regulation is Council Regulation (EEC) No 516/77 of 14 March 1977 on the common organization of the market in products processed from fruit and vegetables. (2) Article 14(1) of that regulation provides for the possibility of appropriate protective measures being applied in trade with non-member countries if, by reason of imports or exports, the Community market in one or more of the products to which the regulation applies is or is likely to be exposed to serious disturbances which might endanger the objectives set out in Article 39 of the Treaty.
The detailed rules for applying those protective measures were laid down by Council Regulation (EEC) No 521/77 of 14 March 1977. (3) Article 1 of that regulation lists a number of factors enabling it to be assessed whether there are disturbances or likelihood of serious disturbances on the market for a product (volume of imports, changes in prices, etc.). Article 2(1)(c) provides that, for all products, the measures which may be taken are: (a) the introduction of arrangements under which, if the price for an imported product falls below a certain minimum, a condition may be imposed whereby that product may be imported only at a price which is at least equal to such minimum; (b) the total or partial suspension of exports.
Following disturbances on the dried grape market during the 1981/1982 marketing year, the Commission adopted Regulation (EEC) No 2742/82, (4) Article 2 of which provides for a minimum price of ECU 106.7 per 100 kg net and a countervailing charge of ECU 16.0 per 100 kg net if the minimum price is not observed. A system of coefficients aims to avoid distortions of competition from monetary fluctuations. The countervailing charge is due when the import price is lower than the minimum price applicable on the day of import. Under Article 4(1), (5) the import price is established by the following factors: (a) the fob price in the country of origin; and (b) transportation and insurance costs up to the place of entry into the Community customs territory. Article 4(3), (6) provides:
"If the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated or if the authorities are not satisfied that the price declared reflects the fob price in the country of origin, the competent authorities of the Member State shall take the necessary measures to determine that price, in particular by reference to the importer' s resale price."
6. The validity of Regulation No 2742/82 and, more particularly the amount of the countervailing charge, were challenged in Cases 77/86 (7) and 291/86 (8) ("dried grapes"). Amongst other things, the importers of dried grapes contested the fixed nature of the countervailing charge, observing that it would have been sufficient to fix that charge at a rate equal to the difference between the minimum price and the import price. There was even less justification for such a fixed-rate charge since as a result of the exchange rate fluctuations and the frequent variations in the minimum prices, which resulted in particular from the system of coefficients, it was not possible, when the goods were sold, to determine with certainty what the minimum price and the import price were when the goods had been placed in free circulation. The Commission explained that the amount of the countervailing charge had been calculated by subtracting from the minimum price the lowest price on the world market, because it was necessary to take account of the world market prices which were the most likely to cause disturbances on the Community' s internal market. Since the Court considered that the introduction of a single, fixed-rate countervailing charge, imposed even where the difference between the import price and the minimum price was very small, amounted to an economic penalty, and that the Commission had not established that such a system was necessary for attaining the objective of Regulation No 521/77, it declared Regulation No 2742/82 to be invalid "in so far as it introduced a countervailing charge at a fixed rate equal to the difference between the minimum price and the lowest world-market price".
Following the Court' s judgment in Case 77/86, the Commission adopted Regulation (EEC) No 994/88, (9) which set out the Community rules applicable to the reimbursement of amounts wrongly paid and stated that operators had a right to reimbursement of the difference between the amount of the countervailing charge levied pursuant to Regulation (EEC) No 2742/82 and the amount resulting from the difference between the minimum price applicable as fixed under Regulation No 2742/82 and the import price on release for free circulation.
7. Those are the provisions applicable to the release for free circulation in June 1984 (Case C-352/93), in respect of which the College van Beroep voor het Bedrijfsleven, referred the following questions for a preliminary ruling by order of 23 April 1993:
"1. Must Regulation (EEC) No 994/88 be interpreted as meaning that that regulation, in place of the provision in Regulation (EEC) No 2742/82 which was declared invalid by the judgment of 11 February 1988 of the Court of Justice in Case 77/86, is to be regarded as the legally valid basis for the calculation of a countervailing charge which is levied for the first time?
2. If the answer to Question 1 is in the affirmative, must the abovementioned regulation be interpreted as meaning that the countervailing charge must be calculated on the difference between the minimum import price and the established import price, or must the flat-rate charge rate declared invalid be taken as the starting point in order if necessary to rectify it afterwards under the provisions of the aforementioned regulation?
3. Must Article 4(3) of Commission Regulation (EEC) No 2742/82 be interpreted as meaning that if the competent authorities are not satisfied that the price declared reflects the fob price in the country of origin,
(a) facts may be collected exclusively in order to determine which import price actually was agreed and paid, directly or indirectly, between the exporter and the importer;
or that
(b) the competent authorities are at liberty themselves to reconstruct an import price, within the meaning of Article 4(1) of Regulation (EEC) No 2742/82, for the transaction in question, and in so doing take account of
° transactions other than the transactions between exporter and importer which, in the authorities' opinion were either exclusively or partly aimed at ensuring that no countervailing charge had to be paid upon importation, or which, in any event, would not have been carried out if they had not made the collection of the countervailing charge wholly or partly impossible,
and
° changes in the price of the product which occurred after it was imported at subsequent stages in the commercial chain?
4. Is the aforementioned provision invalid, under the hypothesis set out in Question 3(b), on the ground that the Council regulation does not confer on the Commission the power to grant the competent national authorities such a large degree of discretion in determining whether or not the import price in a given case is below the minimum price?"
Case C-351/93 (declaration of entry into free circulation of 25 February 1989)
8. By Article 4a of Regulation No 516/77, as inserted by Regulation (EEC) No 988/84, (10) the Council established the principle of a minimum import price for dried grapes for each marketing year and reserved the right to adopt general implementing rules which might inter alia provide for a system of advance fixing of the minimum import price. The minimum import price is therefore not imposed as a protective measure, but is instead permanent. There are identical provisions in Article 9 of Regulation No 426/86, the basic regulation which replaced Regulation No 516/77 with effect from 1 March 1986.
In Regulation (EEC) No 2089/85 (11) establishing general rules relating to the system of minimum import prices for dried grapes, the Council laid down that the minimum import price was to be fixed before the beginning of the marketing year and that the countervailing charges were to be fixed by reference to a scale of import prices.
In July 1985 the Commission adopted Regulation (EEC) No 2237/85 (12) laying down detailed rules for the application of the minimum import prices system for dried grapes. Under Article 1(2) of that regulation the factors constituting the import price are: (a) the fob price in the country of origin; and (b) transport and insurance costs to the point of entry into the customs territory of the Community. According to the regulation "fob price" means the price paid or to be paid for the quantity of products contained in a consignment including the cost of placing the consignment on board a means of transport at the place of shipment in the country of origin and other costs incurred in that country. The fob price does not include the cost of any services to be borne by the seller from the time that the products are placed on board the means of transport. With regard to the determination of the import price, Article 2 of the regulation provides that it is to be declared on the entry for release for free circulation which is to be accompanied by all the documents required to verify the price. Under Article 2(3):
"The competent authorities shall:
(a) if the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated, (13) or
(b) if the authorities are not satisfied that the price declared in the entry reflects the actual import price, or
(c) if payment has not been effected within the time-limit ...,
take the necessary measures to determine the import price, in particular by reference to the importer' s resale price."
9. It is on the subject of those provisions applicable to the entry for release for free circulation in February 1989 that the College van Beroep voor het Bedrijfsleven referred the following questions to the Court for a preliminary ruling. For the sake of completeness, I set out their wording, but, with the exception of the applicable provisions, it does not differ from Questions 3 and 4 of Case C-352/93:
"1. Must Article 2(3)(b) of Commission Regulation (EEC) No 2237/85, in conjunction with Article 9 of Council Regulation (EEC) No 426/86, be interpreted as meaning that if the competent authorities are not satisfied that the price declared in the entry for release for free circulation reflects the actual import price,
(a) facts may be collected exclusively in order to determine which import price actually was agreed and paid, directly or indirectly, between the exporter and the importer;
or that
b) the competent authorities are at liberty themselves to reconstruct an import price, within the meaning of Article 1(2) of Regulation (EEC) No 2237/85, for the transaction in question and in so doing take account of
° transactions other than the transactions between exporter and importer which, in the authority' s opinion, were either exclusively or partly aimed at ensuring that no countervailing charge had to be paid on importation, or which in any event would not have been carried out if they had not made the collection of the countervailing charge wholly or partly impossible,
and
° changes in the price of the product which occurred after it was imported at subsequent stages in the commercial chain?
2. Is the aforementioned provision invalid, under the hypothesis set out in Question 1(b) above, on the ground that the Council Regulation does not confer on the Commission the power to grant the competent national authorities such a large degree of discretion in determining whether or not the import price in a given case is below the minimum price?"
The Morello cherry case (C-353/93)
Facts
10. This case concerns the import between December 1986 and August 1988 of Morello cherries originating in what used to be Yugoslavia. Tracotex Holland B.V., a customs agent, acted on behalf of De Leeuw' s Handelsonderneming B.V. (now Mondifoods B.V.). According to the court making the reference, two types of invoices accompanied the entries into free circulation: an invoice drawn up by a seller established in Austria (14) or an invoice from a seller established in Yugoslavia but requesting payment to be made to the account of a third company established in Germany or in another country. The import documents did not make a separate reference to the import price, but the customs officials passed them after verifying the EUR 1 certificates. During 1989 the Fiscale Inlichtingen- en Opsporingsdienst carried out an investigation at the importer' s premises. Following that investigation, the Inspector of Customs and Excise claimed from the customs agent the sum of HFL 539 673.40 by way of countervailing charge. The Inspector reconstructed an import price by taking as a starting point the resale price of the cherries (which was discovered during the investigation at the premises of Mondifoods) and deducting a profit estimated on a flat-rate basis at 8%, relevant expenses, transport costs and import duties which applied at the time of import. Tracotex brought an action against that decision.
The file sent to the Court does not show that the price paid by Mondifoods, whether to the Austrian company or to the German bank account of a Yugoslavian undertaking, was below the minimum import price. On the contrary, Mondifoods claims to have paid purchase prices above the minimum prices, which does not appear to be disputed by the Netherlands Ministry.
The rules applicable and the questions referred to the Court
11. The basic regulations are the same as those in the dried grapes cases, namely successively Council Regulations No 516/77 and No 426/86 on the common organization of the market in products processed from fruit and vegetables. Article 18(2) of Regulation No 426/86, like Article 14 of Regulation No 516/77, already cited in the context of Case C-352/93, (15) provides for the possible adoption of protective measures where serious disturbances may endanger the objectives set out in Article 39 of the Treaty. In Regulation (EEC) No 1626/85 (16) the Commission adopted such measures with respect to Morello cherries.
Article 2(1) of that regulation provides that the customs authorities are, at the time of completion of customs import formalities for free circulation, to compare the import price with the minimum price. Under Article 3(1) of the regulation, the following factors are to constitute the import price: (a) the fob price in the country of origin; and (b) transportation and insurance costs up to the place of entry into the customs territory of the Community. Article 3(3) provides:
"If the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated or if the authorities are not satisfied that the price declared reflects the fob price in the country of origin, the competent authorities of the Member State shall take the necessary measures to determine that price, in particular by reference to the importer' s resale price."
12. In order to resolve the dispute before it, the College van Beroep voor het Bedrijfsleven referred various questions to the Court by order of 23 April 1993. I will also set them out, even though two of them differ only slightly from Questions 3 and 4 in Case C-352/93:
"1. Must Article 3(3) of Commission Regulation (EEC) No 1626/85, in conjunction with Article 18(2) of Council Regulation (EEC) No 426/86, be interpreted as meaning that if the customs authorities are not satisfied that the price declared reflects the fob price in the country of origin,
(a) facts may be collected exclusively in order to determine which import price actually was agreed and paid, directly or indirectly, between the exporter and the importer;
or that
(b) the competent authorities are at liberty themselves to reconstruct an import price, within the meaning of Article 3(1) of Regulation (EEC) No 1626/85, for the transaction in question and in so doing take account of
° transactions other than those between exporter and importer, including in particular transactions at various stages of the commercial chain between the exporter and the importer,
and
° the importer' s resale price, in a manner involving deduction from that price of a number of flat-rate items for costs (fixed amounts per 100 kg gross) and profit (8% in the case of the intermediary trade) not deriving from the records of the importer and/or the intermediary?
2. Is the aforementioned provision invalid under the hypothesis set out in 1(b) above on the ground that the Council regulation does not confer on the Commission the power to grant the competent national authorities such a large degree of discretion in determining whether or not the import price in a given case is below the minimum price?
3. Must Article 3(3) of Commission Regulation No 1626/85 be interpreted as meaning that 'the exporter in the country of origin' is to be understood exclusively as the exporter whose undertaking is established in the country of origin?"
Summary of the questions referred to the Court
13. In each of the three cases, two of the questions refer to provisions of regulations with almost identical wording. The provisions concerned are Article 4(3) of Regulation No 2742/82 (Case C-352/93, dried grapes imported in 1984), Article 2(3) of Regulation No 2237/85 (Case C-351/93, dried grapes imported in 1989) and Article 3(3) of Regulation No 1626/85 (Case C-353/93, Morello cherries). The first of the two almost identical questions concerns the interpretation of those provisions and, more particularly, the facts which the competent authorities may use to determine, or possibly reconstruct, the import price.
The second of those questions concerns the validity of those provisions, should the Court interpret them as meaning that the competent authorities can reconstruct the import price. In each of the cases, the question is asked whether the Commission has exceeded its powers by granting a wide discretion to the national authorities to reconstruct an import price, where the Council' s basic regulations made no reference to that matter.
There is then the third question in Case C-353/93 (Morello cherries) concerning the interpretation of the term "the exporter in the country of origin" in Article 3(3) of Regulation No 1626/85.
Finally, there are the two more specific questions asked in Case C-352/93 relating to the consequences of the Court' s judgments in the 1988 dried grapes cases and to the interpretation of Regulation No 994/88.
Questions relating to the validity and interpretation of certain provisions
14. Leaving to one side the two questions concerning Regulation No 994/88 and the specific question of interpretation asked in Case C-353/93, the national court is asking the Court, first, to interpret Article 4(3) of Regulation No 2742/82, Article 2(3) of Regulation No 2237/85 and Article 3(3) of Regulation No 1626/85 by clarifying the respective powers of the Commission and the authorities of the Member States with regard to supervising the observance of Community rules and, secondly, to assess their validity. Despite my concern to distinguish questions of interpretation from those concerning the validity of the provisions, it must be recognised that they are to a large extent interrelated. Since the validity of provisions depends on the interpretation given to them, and the interpretation must be made in accordance with legal principles and therefore favouring the validity of the provision being interpreted, the two problems are closely linked.
After a general discussion of the division of powers in customs matters between the Community institutions and the Member States and the extent of the powers of the customs authorities (points 15 to 18), I will examine the circumstances in which the import price may be reconstructed (points 19 to 25). It is only after that examination that I will endeavour to answer the questions asked by the national court (points 26 to 32).
The powers of the Community and the Member States in customs matters
15. Community rules of the type referred to the Court for its consideration seek to deal with an economic reality, an actual fact. In order to apply those rules correctly, it is necessary first to determine the price at which a specific product has been purchased before being imported into the Community. The comparison of that price, a matter of fact, with the minimum price fixed by regulation enables it to be determined whether or not the countervailing charge is due.
16. The authorities whose task it is to apply those rules are the customs authorities of the Member States. In order to do that, they primarily apply the procedural rules of their own national law. In so far as the national law is essentially in conformity with Community rules, in particular as to the method of reconstructing the import price and the circumstances in which that method may be used, Community law merely confirms the rules of national law. It is for the national court, and not the Community judicature, to decide questions concerning the validity and the interpretation of those national rules, taking into account, of course, the provisions of Community law.
It is only where national law does not provide for the necessary means to apply the Community rules that the Community legislature has to fill in that gap, just as it must also provide for harmonization of national procedural rules in order to prevent an excessive disparity between national rules causing Community importers to be treated differently. That is why the Council adopted a directive to harmonize procedures for the release of goods for free circulation (17) and, more recently, the regulation establishing the Community Customs Code. (18) Since the imports in question in the present cases took place before the entry into force of that code, Council Directive 79/695 was still applicable. A countervailing charge on the import of an agricultural product falls within the scope of that directive, since Article 1(2) provides that "import duty" means inter alia agricultural levies and other import charges laid down within the framework of the common agricultural policy.
17. Directive 79/695 provides that importers are to submit to the customs authorities entries for release for free circulation containing, in principle, all the information necessary for the application of the customs rules and the collection of any duties or levies required. The customs authorities are not, however, bound by the declaration but may carry out a large number of checks. The verification of the entry for release for free circulation is moreover the subject of Title II of Commission Directive 82/57. Just as in Council Directive 79/695, it is expressly provided there that the customs authorities may verify documents, examine goods and also take samples. If the declaration does not correspond to the actual position, it is the customs authorities' findings which prevail. That power to establish the actual position, is moreover stipulated in Article 10(1) of Council Directive 79/695: "the results of the examination of the entry and the documents attached to it, whether or not combined with examination of the goods, shall be used for calculating the import duties and for applying any other provisions governing the release of goods for free circulation". In other words, where the statements in the entry are incorrect or incomplete, the customs authorities have the power to rectify them or substitute the results of their own findings. The important thing is that the actual position should be described as correctly as possible.
18. It is clear that such provisions allow the customs authorities to combat fraud by substituting their own findings for the particulars set out in the entry submitted to them. In my view, that means that there is a right to reconstitute the actual import price using all the evidence of which the customs authorities are aware and which may be taken into account under their national law.
The situations in which the price may be reconstructed
19. There remains the question of determining when fraud exists. The provisions which the Court is called on to consider provide that the competent national authorities are to take the necessary measures to determine the import price if they are not satisfied that the price declared reflects the fob price in the country of origin (Regulations Nos 2742/82 and 1626/85) or the actual import price (Regulation No 2237/85), or where the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated, or if payment has not been effected within the time-limit provided for in the regulation. In its original version, the earliest regulation appears to apply only to the situation where the price indicated in the invoice presented to the customs authorities did not correspond to fob sales terms. In that case, it was open to the customs authorities to take the necessary measures to determine the fob price. Thereafter, in order better to combat fraud, the Commission laid down by regulation a number of cases where the national authorities might themselves reconstruct the import price. (19)
20. The question is now whether the fact that a regulation sets out certain factual circumstances which may indicate that the import price has been established by fraudulent means is sufficient to enable the national authorities to reconstruct the price where such circumstances are present. Although the national court has not posed its questions from that angle, it nevertheless seems to me to be important to give it some guidance in that respect, having regard to the Court' s recent case-law.
21. The facts in the cases before the Court are a good illustration of that problem. In the dried grapes cases (C-351/93 and C-352/93), the use of fraudulent means is manifest. The sale from Alpaslan Besikcioglu to Fitmay is fictitious; that arrangement is used only in order to bring the goods into the Community at a price above the minimum import price. There is no real intention to transfer (or acquire) ownership of those raisins, which moreover do not leave the ship in the course of the transactions. That is apparent from several matters: the identical nature of Alpaslan Besikcioglu and Izmir Fig Packers, the sale and resale of the dried grapes on the same day, first to Fitmay and then to Stolp, the absence of actual profit for Fitmay on the resale and the awareness of Fitmay' s director that the sale was made only to enable import formalities to be carried out, and furthermore the sale at a loss by Izmir Fig Packers.
On the other hand, fraud is not apparent to the same extent in the Morello cherries case (C-353/93). According to the file sent to the Court, Mondifoods claims to have purchased at a price above the minimum import price and the Netherlands ministry does not appear to dispute that claim. It is solely because the cherries were not bought directly from a producer established in Yugoslavia, and because that fact was considered to be sufficient under the Community rules to enable the competent national customs authorities to determine the price on their own initiative, that those authorities reconstructed the import price.
22. In one of the Court' s recent judgments, (20) of which the College van Beroep could not have been aware when it made its orders, the Court has already considered that problem and given important guidance regarding the way in which one of the provisions now before the Court ought to be interpreted. That case concerned a reference for a preliminary ruling on the interpretation of Article 3(3) of Commission Regulation No 1626/85. In the Dinter case, the German company Hans Dinter GmbH had purchased Morello cherries originating in Yugoslavia from an Austrian intermediary, the partnership Kraus & Kraus (precisely the same firm as the one involved in Case C-353/93). It was established that the price paid by Dinter to Kraus & Kraus was above the minimum import price. However, taking into account the definition of the import price in Regulation No 1626/85 (the fob price in the country of origin and transportation and insurance costs up to the place of entry into the customs territory of the Community) and the fact that the sales invoice had not been drawn up by the exporter in the country in which the product originated, the Hauptzollamt Bad Reichenhall had required Dinter to pay a countervailing charge calculated on the price paid by the Austrian intermediary to the exporter from the country of origin. (21) Dinter brought an action against that decision, claiming, first, that the price which it had paid on import was above the minimum price and, secondly, that it could not have declared the price paid by the Austrian intermediary to the Yugoslav exporter, since it did not know what it was.
23. In its judgment in Dinter, cited above, the Court took into consideration the purpose of the rules, namely to prevent the flow of imported products at abnormally low prices, in holding that the reconstruction of the price was a method which "applies only if there are no other elements or if the customs authorities have doubts as to the price stated on the invoice". (22) "If it is certain that both the price paid to the intermediary by the importer and the resale price then charged by the importer are higher than the minimum price, the objective of Regulation No 1626/85 is attained" and, accordingly, the levying of a countervailing charge is unlawful.
24. In my opinion it therefore follows that the situations subsequently added by the Community legislature, namely "if the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated" and "if payment has not been effected within the time-limit provided for in [the regulation]", cannot be regarded as irrefutable presumptions of fraud enabling the price to be reconstructed without any further verification, but rather as mere indications intended to arouse the attention of the customs authorities. If, despite the presence of one of those indications, there is no doubt as to the actual import price and as to the fact that that price is higher than the minimum price ° as appears to be the position in the Morello cherries case (C-353/93) ° the customs authorities must accept that price and may not reconstruct it.
25. The Community rules do not specify what evidence the customs authorities must have to enable them to challenge the correctness of the import price referred to in the entry or the evidence which an importer can rely on to defend the correctness of that price where it is contested by the customs authorities. In that regard the Commission' s formulation was improved in its subsequent regulations, (23) first, by requiring that the customs authorities have "well-founded doubts" (24) and, secondly, by providing for different methods of proving that the minimum import price has been observed. (25) In this case, since there was no provision of that type in the Community rules applicable at the time of the imports, it is for the national court, where relevant, to appraise, in accordance with its national law, the evidence adduced by the customs authorities and by the importer and to decide whether or not there was doubt as to the correctness of the import price which entitled the authorities to reconstruct that price.
Replies to the questions
26. It is in the light of the above considerations that a reply should be given to the questions referred to the Court for a preliminary ruling. I shall begin with the series of questions concerning the interpretation of the relevant provisions and the factors which the competent authorities may take into account in order to determine or reconstruct the import price. Those questions of interpretation relate to the provisions of the regulations which provide that such a reconstruction may be made where the authorities are not satisfied that the price in the entry reflects the actual import price. It follows from the judgment in Dinter that in such a case the Commission may validly lay down such a method of reconstruction. In Dinter, the Court did not accept that the price could be reconstructed (and a countervailing charge levied) where the goods had been purchased from an intermediary not established in the country of origin of those goods, but where it was certain that both the price paid to the intermediary and that received on the resale were above the minimum price. However, the Court' s judgment does not call into question the lawfulness of the Community provision providing for a reconstruction of the price where doubt does exist. A contrario, the Court does not exclude the levying of a countervailing charge (on the basis of a reconstructed price) "where it is not certain that both the price paid to the intermediary and that received on the resale were higher than the minimum price".
27. In each case, the national court asks the Court about the method to be used in order to determine the import price: must the authorities act on the basis of the documents concerning the transactions between the exporter and the importer, or may they reconstitute the import prices using other transactions of which they are aware and, in particular, changes in the price of the product during subsequent business transactions?
As I have already stated, the customs authorities' task is to establish the facts as precisely as possible. The first relevant factor is without doubt the importer' s entry, but if that entry is incorrect, other evidence must be found which can be taken as a basis. In order to reconstruct the price agreed between the seller and the importer, one can certainly take the various contracts and accounting documents drawn up between exporter and importer or between other persons with respect to the same or other imports and by tracing back from the exporter to the producer, or forwards from the importer to the final consumer.
The method to be adopted in each particular case depends not only on the factual circumstances, but also on the applicable national law. Community law provides, in principle, only for the possibility of taking the resale price as starting point in order to reconstruct the import price. Otherwise, it is the national provisions and in particular price assessment rules, which remain applicable and determine how the competent authorities may use the resale price and other evidence at their disposal in order to reconstruct the import price. It cannot therefore be said that the Commission regulation gives the national authorities carte blanche to reconstruct an import price at their discretion. Those authorities must observe the rules of their own national law. Furthermore, the importers enjoy the protection of the courts of the Member States, where they are entitled to bring an action if they dispute the reconstruction methods adopted and wish to have them reviewed.
At the hearing, Tracotex raised the question whether the freedom left to the authorities of the Member States regarding the method of reconstructing the price did not threaten to divert patterns of trade. At first sight, that appears unlikely since it would be necessary to assume that the competent authorities entertained doubts as to the majority of prices declared by importers and that there were great differences between the methods of reconstruction applied in the various Member States. In any event, the Commission can always opt for greater harmonization of reconstruction methods, if it finds that there is such a diversion of trade.
28. The national court also inquired as to the validity of those provisions, if "the Council Regulation does not confer on the Commission the power to grant the competent national authorities such a large degree of discretion in determining whether or not the import price in a given case is below the minimum price".
As I have already stated, the rules applicable to the organization of the customs regime are of both Community and of national origin. (26) Community law and national law complement each other, since national law continues to apply in all areas not covered by Community law. The application of those laws falls within the jurisdiction of the Member States' customs authorities. In particular, their first task is to check or determine the facts to which the rules apply. Since the Commission has, by the contested regulations, only indicated one method of appraisal which was already known and used by the national legislatures, it has not given them any new power. If national legislation had no such method of appraisal, the Commission Regulation could be justified as an indispensable rule to ensure the proper application of the Community provisions on the minimum import price. In neither case was it necessary for the Council to act. I do not therefore see any ground on which the Commission regulations are illegal in that they enable the import price to be reconstructed in the event of doubt as to the correctness of the price declared by the importer.
29. However, because of its importance, let me repeat that my conclusion as to the validity of the provisions referred to the Court for a preliminary ruling applies only to the method of assessment used to determine the import price. It does not apply to the situations in which that method may be used. As I have already said, that method may be used only where doubts exist as to the price set out in the entry. The other situations provided for in the Commission regulations cannot be regarded as irrefutable presumptions of fraud, but solely as mere indicia (see point 24 above).
30. With regard to the question in Case C-353/93 (import of Morello cherries), it may be asked whether the national court would have felt it necessary for an interpretation of "the exporter in the country of origin", if it had been aware of the Court' s judgment in Dinter. However, that is not a matter which the Court must decide. It will be for the national court, in the light of Dinter and of the evidence presented by the customs authorities and by the importer, to assess whether the reply to its question is still necessary.
Having regard to the wording of Regulation No 1626/85, and taking into account the second recital of Regulation No 2237/85, which states that "to prevent fraud in regard to the minimum import price, only invoices drawn up in the country of origin of the dried grapes should be accepted as documentary evidence", it seems to me that the provision must be interpreted as referring to the exporter whose undertaking is established in the country from which the goods originate.
Regulation No 2742/82 and Regulation No 994/88 (Case C-351/93)
31. The question concerning Regulation No 994/88 is specific to Case C-352/93, in which the import of dried grapes took place in 1984, although the Court has held the regulation applicable at the time, namely Regulation No 2742/82, "invalid in so far as it established a countervailing charge at a fixed rate equal to the difference between the lowest price on the world market and the minimum price". The national court asks whether it is Regulation No 994/88 determining the amounts to be reimbursed to importers which must be regarded as the legally valid base for calculating a countervailing charge which is imposed for the first time.
32. As the Commission and the Netherlands Government point out, in its judgment in National Dried Fruit Trade Association, cited above, the Court did not declare Regulation No 2742/82 to be void in its entirety, but solely the method of calculation and the fixed-rate nature of the charge. The Court accepted the arguments of the importers of dried grapes that it would have been sufficient to set that rate at a rate equal to the difference between the import price and the minimum price. It is that latter method which the Commission followed in Regulation No 994/88, since it allowed reimbursement of the difference between the charge levied pursuant to Regulation No 2742/82 and the amount resulting from the difference between the minimum price and the import price.
Consequently, it seems to me that there should be no problem with regard to the principle of imposing a countervailing charge and the method of calculating it. The provisions of Regulation No 2742/82, as invalidated by the judgment in National Dried Fruit Trade Association, in conjunction with Regulation No 994/88, constitute a sufficient legal basis. The countervailing charge must be equal to the difference between the minimum import price and the established import price.
33. I therefore propose that the Court should reply as follows to the questions submitted by the national court:
In Case C-351/93
(1) Article 2(3)(b) of Commission Regulation (EEC) No 2237/85 of 30 July 1985 laying down detailed rules for the application of the minimum import price system for dried grapes must, having regard in particular to Article 9 of Council Regulation (EEC) No 426/86 of 24 February 1986 on the common organization of the market in products processed from fruit and vegetables, be interpreted as meaning that if the competent authorities have doubts as to whether the price declared in the entry for release for free circulation of the goods reflects the actual import price, they may, after having invited the importer to adduce further evidence that the minimum import price has been observed, reconstruct the import price by using all the evidence of which they are aware and which their national law permits them to take into account.
(2) Consideration of the questions has disclosed no factor of such a kind as to affect the validity of Article 2(3)(b) of Commission Regulation (EEC) No 2237/85 in that it permits reconstruction of the import price where there are doubts as to the correctness of the price declared by the importer.
In Case C-352/93:
(1) Article 2(2) of Commission Regulation (EEC) No 2742/82 of 13 October 1982 on protective measures applicable to imports of dried grapes, in conjunction with Commission Regulation (EEC) No 994/88 of 15 April 1988, constitute the legal basis for calculating a countervailing charge on the import of dried raisins levied for the first time after the judgment of the Court of Justice of 11 February 1988 in Case 77/86.
(2) The countervailing charge is equal to the difference between the minimum import price and the established import price.
(3) Article 4(3) of Commission Regulation (EEC) No 2742/82 is to be interpreted as meaning that if the competent authorities have doubts as to whether the price declared in the entry for free circulation reflects the actual import price, they may, after having invited the importer to adduce further evidence that the minimum import price has been observed, reconstruct the import price by using all the evidence of which they are aware and which their national law permits to be taken into account.
(4) Consideration of the questions has disclosed no factor of such a kind as to affect the validity of Article 4(3) of Commission Regulation (EEC) No 2742/82 in that it permits the import price to be reconstructed in the event of doubts as to the correctness of the price declared by the importer.
In Case C-353/93:
(1) Article 3(3) of Commission Regulation (EEC) No 1626/85 of 14 June 1985 on protective measures applicable to imports of certain Morello cherries must, having regard in particular to Article 18(2) of Council Regulation (EEC) No 426/86, be interpreted as meaning that, if the competent authorities have doubts as to whether the price declared in the entry for free circulation of the goods reflects the actual import price, they may, after having invited the importer to adduce further evidence that the minimum import price has been observed, reconstruct the import price by using all the evidence of which they are aware and which their national law permits to be taken into consideration.
(2) Consideration of the questions has disclosed no factor of such a kind as to affect the validity of Article 3(3) of Commission Regulation No 1626/85 in that it permits the import price to be reconstructed where there are doubts as to the correctness of the price declared by the importer.
(3) Article 3(3) of Commission Regulation No 1626/85 is to be interpreted as meaning that "the exporter in the country of origin" is to be understood as the exporter whose undertaking is established in the country of origin of the products.
(*) Original language: French.
(1) ° Commission Regulation of 11 November 1988 amending Regulation (EEC) No 2303/88 as regards the countervailing charges to be imposed where the minimum import price for dried grapes is not observed (OJ 1988 L 307, p. 26).
(2) ° OJ 1977 L 73, p. 1. With effect from 1 March 1986 that regulation was replaced by Council Regulation (EEC) No 426/86 on the common organization of the market in products processed from fruit and vegetables (OJ 1986 L 49, p. 1.)
(3) ° Regulation (EEC) No 521/77 laying down detailed rules for applying protective measures in the market in products processed from fruit and vegetables (OJ 1977 L 73, p. 28).
(4) ° Regulation of 13 October 1982 on protective measures applicable to imports of dried grapes (OJ 1982 L 290, p. 28).
(5) ° As amended by Commission Regulation (EEC) No 936/84 of 5 April 1984 (OJ 1984 L 96, p. 13).
(6) ° As amended by Regulation No 936/84, cited above.
(7) ° Judgment in Case 77/86 National Dried Fruit Trade Association [1988] ECR 757.
(8) ° Judgment in Case 291/86 Central-Import Muenster v Hauptzollamt Muenster [1988] ECR 3679.
(9) ° Regulation of 15 April 1988 on the application of the countervailing charge pursuant to Regulation (EEC) No 2742/82 on protective measures applicable to imports of dried grapes (OJ 1988 L 99, p. 12).
(10) ° Regulation of 31 March 1984 amending Regulation (EEC) No 516/77 on the common organization of the market in products processed from fruit and vegetables and Regulation (EEC) No 950/68 on the common customs tariff (OJ 1984 L 103, p. 11).
(11) ° Regulation of 23 July 1985 (OJ 1985 L 197, p. 10).
(12) ° Regulation of 30 July 1985 (OJ 1985 L 209, p. 24).
(13) ° The second recital of the regulation states that to prevent fraud in regard to the minimum import price, only invoices drawn up in the country of origin of the dried grapes should be accepted as documentary evidence .
(14) ° According to the file sent to the Court by the national court (Document 9-5) this is a company incorporated under Austrian law, Kraus & Kraus, whose name also appears in the Dinter case, on which the Court of Justice has given judgment and which I will discuss further below.
(15) ° See point 5, above.
(16) ° Regulation of 14 June 1985 on protective measures applicable to imports of certain Morello cherries (OJ 1985 L 156, p. 13).
(17) ° Council Directive 79/695/EEC of 24 July 1979 on the harmonization of procedures for the release of goods for free circulation (OJ 1979 L 205, p. 19): see also Commission Directive 82/57/EEC of 17 December 1981 laying down certain provisions for implementing Council Directive 79/695/EEC on the harmonization of procedures for the release of goods for free circulation (OJ 1982 L 28, p. 38).
(18) ° Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1). Article 1 of the code provides customs rules shall consist of this Code and the provisions adopted at community level or nationally to implement them .
(19) ° See the second recital of Regulation No 936/84 and the second recital of Regulation No 2237/85, cited in footnote 13 above.
(20) ° Case C-81/92 Dinter [1993] ECR I-4601.
(21) ° Unlike the present cases, the import price was therefore not reconstructed from the resale price after importation, but rather from the initial price paid by the intermediary to the exporter from the country of origin.
(22) ° Paragraph 18 of the judgment.
(23) ° These are Commission Regulation (EEC) No 2053/89 of 10 July 1989 laying down detailed rules for the application of the minimum import price system for certain processed cherries (OJ 1989 L 195, p. 11) and Commission Regulation (EEC) No 2054/89 of 10 July 1989 laying down detailed rules for the application of the minimum import prices system for dried grapes (OJ 1989 L 195, p. 14). Those regulations are almost identical.
(24) ° See Article 6(1) of those regulations: where the customs authorities have well-founded doubts that the price appearing in the declaration of release for free circulation reflects the actual import price, they shall require the importer to furnish within 6 months proof that the product has been disposed of under conditions ensuring that the minimum import price has been observed ... .
(25) ° Article 7 of the regulations is worded as follows:
1. The minimum import price shall be deemed to be observed if the importer furnishes proof in respect of at least 95% of the consignment imported that the product was sold to the end user without further processing, after packaging, directly or via commercial intermediaries at a price at least equal to the minimum import price.
2. If the proof from the end user cannot be presented despite all steps taken by the importer, the competent authorities may accept other proof to the effect that the product was sold under conditions indicating that the minimum price has been observed.
(26) ° See in particular Article 1 of the Community Customs Code, cited in footnote 18 above.