61998CC0230_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The Tribunale di Treviso (Italy) has referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) certain questions on the interpretation of Regulation No 545/92/ EEC (hereinafter Regulation No 545/92) and Regulation No 859/92/EEC (hereinafter Regulation No 859/92) governing imports of beef, more specifically baby-beef products from the Republics of Croatia and Slovenia and from the former Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro during 1992.
I - Facts
2. On 28 September and 6 and 19 October 1992, the undertaking Schiavon Silvano, the defendant in the main action, carried out three operations for the import of baby-beef from the former Yugoslav Republic of Macedonia, worth a total sum of ITL 179 903 600, under the arrangements for suspension of customs duties and VAT, in the expectation that it would be able to prove its entitlement to benefit from the preferential trade arrangements governed by Regulation No 545/92.
The undertaking submitted certificates issued by the Savezni Trzisni Inspektorat of Belgrade to prove the origin of the baby-beef. This was the authority of the former Federal Republic of Yugoslavia having competence to issue the certificates in accordance with the rules adopted to implement the Cooperation Agreement between the EEC and that State.
3. The Amministrazione delle Finanze dello Stato - Dogana di Trieste (Trieste Customs Authority), the applicant in the main proceedings, considered that those certificates were not valid and did not therefore enable the imported goods to be eligible for preferential trading treatment. Consequently, it demanded payment of the import duties plus VAT and interest, in a total sum of ITL 233 971 480. The insurance company covering the undertaking's risks paid the maximum amount covered, equivalent to ITL 150 000 000, and the balance due to the customs authority was thus reduced to ITL 83 971 480.
The company was declared insolvent by order of the Tribunale di Treviso on 5 October 1995.
4. The customs authority applied under Article 101 of the Law on Insolvency for the outstanding balance of its claim, namely ITL 83 971 480, to be added to the liabilities on insolvency of Schiavon Silvano as a preferential debt.
5. The following matters are agreed between the parties: that the imported bovine products qualify for the fiscal advantages accorded to imports from certain non-Community countries; that they originated in the former Yugoslav Republic of Macedonia; that the goods were accompanied by certificates of origin issued by the Savezni Trzisni Inspektorat and that the imports took place between September and October 1992.
In essence, the dispute concerns the question whether the certificates issued by the Savezni Trzisni Inspektorat, which accompanied goods released for free circulation in the Member States after 5 April 1992, should be regarded as valid for the purposes of the grant of the fiscal advantages provided for by Regulation No 545/92 even though no authorised body had been appointed to certify the origin and nature of products in certain Republics of the former Yugoslavia.
II - The questions referred for a preliminary ruling
6. With a view to determining the dispute, the Tribunale di Treviso has referred the following questions for a preliminary ruling by the Court of Justice:
(1) Must Article 1 of Council Regulation No 545/92 be regarded as immediately conferring upon Community citizens a subjective right to relief from duty and tax on imports, with the result that, in the absence of any indication of the authority empowered to issue certificates of origin in the case of certain former Yugoslav Republics, that right continues to exist even where a certificate has been issued by the body previously authorised, until such time as the new body is designated?
(2) Or, on the contrary, is the list in Annex I of Commission Regulation No 895/92 exhaustive and does it deprive the Savezni Trzisni Inspektorat of any authority to issue certificates?
III - The Community legislation and the context in which it was adopted
7. In April 1980 the Community and its Member States, of the one part, and the Yugoslav Republic, of the other part, signed a Cooperation Agreement, approved by Regulation No 314/83. That agreement was suspended when an armed conflict erupted in that State in 1991. The Agreement was then denounced with effect from 27 November 1991; and Regulation (EEC) No 3300/91 (hereinafter Regulation No 3300/91) suspended the trade concessions granted by the Community, with effect from 15 November 1991.
8. Regulation (EEC) No 3567/91 (hereinafter Regulation No 3567/91) then granted to the Republics of Bosnia-Herzegovina, Croatia and Slovenia and the former Yugoslav Republic of Macedonia trade benefits which were almost the same as those provided for by the Cooperation Agreement, covering a range of products but not baby-beef.
Regulation No 545/92, adopted on 3 February 1992, pursues the policy initiated by Regulation 3567/91, which dates from the beginning of December of the previous year, and extends the preferential trade arrangements to other products from those Republics.
9. In order to give a preliminary ruling on the issues raised, it is necessary to consider Article 7(3) of Regulation No 545/92, governing trade benefits granted for the import of baby-beef, which provides: To help stabilise the Community internal market, the Commission shall ensure that each Republic concerned shall maintain an appropriate delivery rate and shall adopt any measures required to ensure the orderly growth of its exports to the Community, in particular through effective controls on each consignment by means of a certificate stating that the goods originate in and come from the Republic concerned and correspond exactly to the definition in Annex E. The text of this certificate shall be drawn up by the Community.
That regulation was of temporary application, limited to the year 1992.
10. On 3 April 1992, Regulation No 859/92 was adopted in compliance with Article 10 of Regulation No 545/92, which requires the Commission to draw up detailed rules for the implementation of agricultural provisions. The national court has also requested an interpretation of Regulation No 859/92. The purpose of the latter regulation was to specify the requirements for obtaining a reduction in the levy, as envisaged by Article 7 of Regulation No 545/92, for imports of baby-beef into the Community from the Republics in question.
Article 1 thereof provides:
The reduced levies collected on import referred to in Article 7 of Regulation (EEC) No 545/92 shall only apply to products accompanied by certificates as provided for in Article 7(3) of that Regulation.
2. The specimen for those certificates shall be as set out in Annex I to Regulation (EEC) No 1368/88.
...
4. Certificates shall be valid only if they are duly endorsed by an issuing agency appearing on the list in Annex I hereto.
11. The issuing agencies listed in Annex I to Regulation No 859/92 are: for the Republic of Croatia, Euroinspekt, Zagreb, and, for the Republic of Slovenia, Inspect, Ljubljana.
12. Article 2 of Regulation No 859/92 provides:
At the request of the parties concerned and on presentation of proof that products released for free circulation in the Member States in the period 1 January to 5 April 1992 were accompanied by certificates as provided for in Article 1(2) endorsed either by a body listed in Annex I or by the body in Annex II hereto, the Member States shall reimburse the difference between the levies set out in column 2 and 4 of Regulation (EEC) No 853/92 provided the place of issue of the aforementioned lies within the geographical territory of a republic mentioned in Article 1 of Regulation (EEC) No 545/92.
13. The issuing agency listed in Annex II thereto is the Savezni Trzisni Inspektorat of Belgrade.
14. That regulation likewise ceased to apply to imports made after 31 December 1992.
15. Regulation No 1368/88 laid down the conditions for granting the trade benefits provided for by the Additional Protocol to the Cooperation Agreement with Yugoslavia for the import of beef into the Community. Under that regulation, when such meat is placed in free circulation in the Community, a certificate issued in Yugoslavia is to be submitted in the form described in Article 3 thereof. Such certificates must be authenticated by an issuing agency. According to Article 6 thereof, which applies to operations carried out pursuant to Regulations No 545/92 and 859/92, an issuing agency must be recognised as such by the exporting country, must undertake to verify the particulars shown in the certificates, must undertake to provide the Commission and Member States, on request, with all appropriate information to enable an assessment to be made of the particulars shown in the certificates and must undertake to send the second copy of each authenticated certificate to the authorities indicated in Article 4(2) within three days from the date of issue.
IV - Procedure before the Court of Justice
16. The Italian Government and the Commission have filed written observations within the period prescribed by Article 20 of the EC Statute of the Court of Justice. None of the parties concerned asked to be allowed to submit oral observations and thus the Court decided, under Article 104(4) of its Rules of Procedure, to dispense with a hearing.
V - Examination of the questions referred
17. I should start by explaining the purpose of the questions referred for a preliminary ruling, in relation to which the Italian court is particularly interested in Article 1 of Regulation No 545/92.
18. That article simply states that products not listed in Annex II to the EC Treaty or in Annex A to the regulation which originate in the Republics of Croatia and Slovenia and in the former Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro may be imported into the Community without quantitative restrictions or measures having equivalent effect and are to be exempt from customs duties and charges having equivalent effect.
As far as the present case is concerned, the other articles provide that the products listed in Annex B are to be subject to import duties (Article 2); that the import of products listed in Annexes CI, CII, CIII and CIV is to be subject to annual ceilings above which the customs duties actually applicable in respect of other countries may be reintroduced (Article 3); and that, for the agricultural products listed in Annex D, reduced rates of customs duties and tariff quotas are to apply (Articles 4 to 6). As far as baby-beef products (defined in Annex E) are concerned, tariff quotas are laid down and provision is also made for a reduction in the levy. In order to ensure that goods do in fact originate in a particular Republic and that they correspond exactly to the definition given in Annex E, Article 7(3) provides that the text of a certificate is to be drawn up by the Community to cover this.
19. It is quite clear from the order of the national court that the relevant rules to be applied by it in the main proceedings, and concerning which it expresses doubts, are those governing the import of baby-beef products into the Community. I therefore believe that the present case requires an interpretation of Article 7 of Regulation No 545/92 and of Regulation No 859/92, which was adopted by the Commission in order to accomplish the task imposed on it by the former provision, namely, to ensure that each Republic maintains an appropriate delivery rate and adopts any measures required to ensure the orderly growth of its exports to the Community.
A - The first question
20. Having made that point, it seems clear that the Tribunale di Treviso has referred the first of the two questions with a view to discovering whether individuals may rely on Article 7 of Regulation No 545/92, in conjunction with Regulation No 859/92, in order to import baby-beef into the Community with the benefit of a reduced levy, so that, if no agency has been appointed with authority to certify that the products originated in one of the Republics, the submission of a certificate authenticated by the agency which was previously so authorised can give them an effective right to import on that basis.
In the view of both the Italian Government and the Commission, the reply to that question must be in the negative. I have to say that I agree with them.
21. Regulation No 545/92 implemented exceptional preferential trade arrangements in favour of certain Republics of the former Yugoslav Republic which were not based on agreements concluded between the Community and those Republics. These preferential trade arrangements were made unilaterally by the European institutions, by means of regulations which were only valid for one year. This meant that application thereof could, if necessary, be dictated by the political situation and that the benefit of those arrangements could be enjoyed only if certain conditions, regarded as necessary by the Council and the Commission and laid down by them unilaterally, were complied with.
22. Article 7 of Regulation No 545/92 established a specific and complete system of trade benefits for the import of baby-beef products into the Community. Paragraphs 1 and 2 of that article respectively imposed an annual Community quota of 25 000 tonnes for which the amount of the levy was equivalent to 20% of the basic levy and a second annual quota of 25 400 tonnes, to be used once the first quota had been exhausted, the levy for the latter quota being equivalent to 50% of the basic levy.
23. There were various requirements which had to be fulfilled before importers could benefit from those advantages. First, the more reduced levy only applied to the first annual quota of 25 000 tonnes and only on condition that the free-at-frontier offer price, increased by customs duty and the reduced levy, was not less than the Community intervention price for category AU 3, plus 5%.
Second, the levy equivalent to 50% of the basic levy was applicable to a second annual quota of 25 400 tonnes, to be used after the first quota was exhausted. That second quota was likewise dependent on the price, calculated in the same way as for the first quota, being not less than that resulting from application of the normal levy.
Third, other limits were imposed for those quotas where the Community market price was less than 98% of the guide price. Thus, a maximum volume of tonnes per month was provided for and there was a limit on the amount of unused tonnes which could be carried over from one month to the following month or from the January-May period to the June-September period, as well as a limit on the monthly volume for the latter period.
Fourth, the Republics covered by that regulation were required to notify the competent Community bodies of any relevant information concerning export prices together with the quantities and presentation of the products exported (livestock, carcase or quarters).
Lastly, each consignment had to be effectively controlled by means of a certificate stating the origin of the goods and confirming that they corresponded exactly to the definition in Annex E.
24. Article 7 of Regulation No 545/92 clearly did not confer on economic operators automatic eligibility for the reduced levy when importing baby-beef products into the Community. On the contrary, that eligibility was conditional on compliance with a number of requirements, none of which was under the control of the operator apart from that concerning submission of the certificate. The other requirements were dependent on factors such as the total number of tonnes imported and the Community market price, which were to be supervised and checked by the Commission.
25. My opinion, based on the above, is that Article 7 of Regulation No 545/92 did not confer on individuals an unconditional right to import baby-beef products into the Community during its period of validity, since a series of requirements had to be complied with in order for it to apply, most of which were linked to factors over which the traders concerned had no control and compliance with which was to be assessed by the Commission, which was empowered to adopt measures on the basis of the findings made by it and enjoyed a measure of discretion in that regard.
B - The second question
26. By its second question, the Tribunale di Treviso is requesting an interpretation of Regulation No 859/92 enabling it to determine which issuing agencies were authorised to issue the certificates provided for in Article 7(3) of Regulation No 545/92 throughout 1992.
27. Pursuant to the implementing powers conferred on it by Regulation No 545/92, the Commission adopted on 3 April 1992 Regulation No 859/92, which came into force on 6 April 1992. Under Article 1 thereof, the reduced levies applied only to products accompanied by a certificate in the form of the specimen set out in Regulation No 1368/88.
Under Article 7(3) of Regulation No 545/92, that certificate served two purposes: (1) to prove that the goods which it accompanied originated in the Republic whose issuing agency had authenticated that document and (2) to ensure that the goods corresponded exactly to the definition of baby-beef products contained in Annex E to that regulation.
28. The certificate was valid only if it had been authenticated by one of the agencies listed in Annex I thereto. No issuing agency was listed for the former Yugoslav Republic of Macedonia, since the only two agencies on the list were one for Croatia and one for Slovenia.
29. In accordance with Article 12 of Regulation No 545/92, the import arrangements introduced by that regulation were applicable from 1 January until 31 December 1992. Since the implementing regulation adopted by the Commission did not come into force until 6 April 1992, it had to be given retroactive effect, and this was done by Article 2. That article required Member States to reimburse the difference between levies provided for in Regulation No 853/92, specifically in columns 2 and 4 of the Annex thereto, at the request of those concerned, if the latter could show that the baby-beef products released for free circulation in the Member States between 1 January and 5 April 1992 were accompanied by a certificate issued in the territory of one of the Republics concerned.
It was accepted that certificates in respect of imports made during that period were authenticated both by one of the bodies listed in Annex I, that is to say, the one for the Republic of Croatia or the one for the Republic of Slovenia, and by the agency mentioned in Annex II, namely the Savezni Trzisni Inspektorat of Belgrade, the issuing agency authorised for that purpose under the rules implementing the Cooperation Agreement between the Community and the Yugoslav Republic concerning trade concessions, which were suspended by Regulation 3300/91.
30. According to those rules, certificates authenticated by the Savezni Trizsni Inspektorat of Belgrade were valid for the purposes of seeking reimbursement of the difference between the amounts of certain levies only if they had accompanied goods released into free circulation in the Member States prior to 6 April 1992. Since the defendant undertaking in the main proceedings carried out the import operations in issue on 28 September and 6 and 9 October 1992, the certificate accompanying the goods and authenticated by that agency could not be regarded as valid for the purposes of applying the reduced levy to the imports in question.
31. In view of the fact that the Savezni Trzisni Inspektorat of Belgrade belonged to the Republic of Serbia and certificates issued in that territory could not confer a right to preferential trade treatment, acceptance of certificates endorsed by branches of that agency in the territory of the other Republics could be justified until such time as the Commission recognised the respective issuing agencies of those Republics. However, this does not mean that the preferential arrangements could not start to be applied or that the competence of that agency had to be extended until such time as the Commission managed to identify an agency in each of the Republics in which it had sufficient confidence to allow it to take control of exports to the Community.
32. The Court ruled on this point in its judgment in Anastasiou, which concerned the question whether the customs authorities of Member States should accept movement certificates proving the Cypriot origin of goods which had been issued by the Turkish community in the northern part of the island of Cyprus. In that case, the Court stated that the system whereby movement certificates are regarded as evidence of the origin of products is founded on the principle of mutual reliance and cooperation between the competent authorities of the exporting State and those of the importing State. Acceptance of certificates by the customs authorities of the importing State reflects their confidence in the system of checking the origin of products as implemented by the competent authorities of the exporting State. It also shows that the importing State is in no doubt that subsequent verification, consultation and settlement of any disputes in respect of the origin of products or the existence of fraud will be carried out efficiently with the cooperation of the authorities concerned.
33. In that judgment, the Court held that a system of that kind could not therefore function properly unless the procedures for administrative cooperation were strictly complied with. However, such cooperation was excluded with the authorities of an entity such as that established in the northern part of Cyprus, which is recognised neither by the Community nor by the Member States; the only Cypriot State they recognise is the Republic of Cyprus.
The same conclusion must a fortiori be adopted as regards cooperation with the authorities and agencies of a State such as the Republic of Serbia, which was not even one of the beneficiaries of the preferential trade arrangements introduced by Regulation No 545/92.
34. As regards the different treatment accorded to the Republics benefitting from the preferential trade arrangements, depending on whether or not they had designated an issuing agency in which the Commission had confidence, the Court of Justice has also stated in its case-law that there exists in the Treaty no general principle obliging the Community, in its external relations, to accord to non-member countries equal treatment in all respects and that, if different treatment of non-member countries is compatible with Community law, different treatment accorded to traders within the Community must also be regarded as compatible with Community law where that different treatment is merely an automatic consequence of the different treatment accorded to non-member parties with which such traders have entered into commercial relations.
35. Nor can such traders plead, in view of the invalidity of the certificate authenticated by the Savezni Trzisni Inspektorat of Belgrade from the time when Regulation 859/92 entered into force, an infringement of the principle of the protection of legitimate expectations. There are several reasons for this. First, once Regulation No 3300/91 suspending the trade concessions provided for by the Cooperation Agreement between the Community and the Yugoslav Republic was published in the Official Gazette of 15 November 1991, those traders would have been deemed to know that certificates issued by that agency would not render them eligible for trade benefits in respect of imports into the Community. The second reason is that Regulation No 859/92, published on 4 April 1992, clearly states that certificates endorsed by that agency would be regarded as valid if they had accompanied goods released for free circulation in Member States between 1 January and 5 April.
36. For the above reasons, I consider that the answer to the second question referred for a preliminary ruling must be that the issuing bodies authorised to endorse the certificates referred to in Article 7(3) of Regulation No 545/92 during 1992 are those listed in Annex I to Regulation No 859/92 and that, although throughout 1992 no issuing agency was appointed for the territory of the former Yugoslav Republic of Macedonia to endorse such certificates, the competence of the Savezni Trzisni Inspektorat of Belgrade could not be extended beyond 5 April 1992.
VI - Conclusion
37. In the light of the foregoing considerations, I propose that the Court should reply as follows to the questions referred for a preliminary ruling by the Tribunale di Treviso:
(1) Article 7 of Council Regulation (EEC) No 545/92 of 3 February 1992 concerning the arrangements applicable to the import into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro did not confer on individuals an unconditional right to import baby-beef products into the Community during the period of its validity, since the application thereof was subject to a series of requirements, most of which were linked to factors over which the traders concerned had no control and compliance with which was to be assessed by the Commission, which was empowered to adopt measures on the basis of the findings made by it and enjoyed a measure of discretion in that regard.
(2) The issuing bodies authorised to endorse the certificates referred to in Article 7(3) of Regulation No 545/92 during 1992 are those listed in Annex I to Commission Regulation (EEC) No 859/92 of 3 April 1992 laying down detailed rules governing imports of baby-beef originating in the Republics of Croatia, Slovenia and the former Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro. Although throughout 1992 no issuing agency was appointed for the territory of the former Yugoslav Republic of Macedonia to endorse such certificates, the competence of the Savezni Trzisni Inspektorat of Belgrade could not be extended beyond 5 April 1992.