4.

Consideration must, however, be given to another aspect of the question, bearing in mind what was stated by the French customs authorities before the Court concerned with the substance of the case; I refer to the fact that, under Article 95 of the French customs code, referred to by the order of the Director-General of Customs of 1 December 1961, the declarations of origin of imported goods must contain all the information necessary for the purposes of customs statistics as well. Does this use of declarations of origin for statistical purposes avail to justify the provision obliging importers to make the declarations in question? Statistical surveys are, of course, an indispensable means of detecting the trend of movements of trade. That this knowledge is one of importance to the Community is demonstrated by the fact that, in Regulation No 1736/75 of 24 June 1975, the Council, acting on the basis of Article 235 of the EEC Treaty, felt it to be necessary to introduce standard definitions and methods for the external trade statistics of the Community and for statistics of trade between Member States. The third recital in the preamble to the regulation indicates that trade statistics, including those of trade between Member States, are collected by the Member States and that standard definitions and methods have proved necessary for the purpose of producing homogeneous and detailed data. In the eleventh recital it is stated that ‘statistics relating to trade between the Member States are required for the harmonious functioning of the common market’ The fact that, further, individual Member States may also have an interest, which the Treaty recognizes as a legitimate one, may be demonstrated by reference to the right which each one of them has to apply to the Commission for authorization to take protective measures within the meaning of Article 115, referred to above, on the ground that there is a ‘deflection of trade’. Since such a right has been conferred each Member State must also be allowed to obtain the necessary information in order to determine for itself the expediency of measures of the kind indicated or to give the Commission the opportunity to obtain a picture of the pattern of trade in relation to the market in the applicant State to enable it to decide whether or not, and on what conditions, to grant the requested authority to derogate. In my opinion, therefore, there were, at the material time, sufficient grounds, from a Community standpoint, for regarding as legitimate national measures which, for information and statistical purposes, required importers to declare to the customs authorities the origin of goods coming from other Member States. Nor can this conclusion be regarded as contradicted by what this Court had occasion to declare in Craeynest (Judgment of 22 October 1970 in Case 12/70, [1970] ECR 905) which was to the effect that the requirement of the identical use, in all the Member States, of a Community movement certificate for goods (in the case in question this was Certificate DD4) ‘would be invalidated if national administrations were able to employ other means of proof, apart from the proof of origin which is established in the form of the said certificate’. In fact that judgment does no more than declare that, for the purposes of ascertaining whether goods fulfil the requirements of Articles 9 and 10 of the Treaty, the States may not demand further proof that the Community certificate which involves the free circulation of -the goods throughout the Community. Having said this, I must add at once that this interpretation cannot rule out definitions and reservations, especially those which accord with the principle, explained above, that an obstruction to the freedom of trade recognized, in view of its object, as legitimate, must be in proportion to that object. In this connexion, the first question to be determined is whether or not the importing State takes into account the difficulties which an importer may find in specifying with certainty the country of origin of his goods when it demands a declaration as to the origin of the goods and determines the consequences of any errors in the declaration. In the present case the Commission has stated that products are, with increasing frequency, subjected to a series of processes in various States and may pass through the hands of a number of owners with the result that in many cases it is very difficult, or even impossible, to establish their origin. Accordingly, and, of course, ignoring subsequent limitations which may now result from Regulation No 1736/75, referred to above, a national provision which makes the marketing of imported goods in all circumstances subject to an exact declaration by the importer of the origin of the goods, without leaving him any ground to stand on if he does not know it, must be held to be unjustifiably harsh and disproportionate to the objective of obtaining statistical information. Secondly, it is necessary to ascertain what penalty the Member State concerned imposes in the event of failure to comply with the obligation to declare the origin of the goods. If, as in the present case, the penalty takes the form of confiscation of the goods (or of the payment of an amount equal to its value), to which are added a fine equal to twice the value of the goods and conviction to a term of imprisonment, I do not think that I need waste time in showing that the penalty is excessive in relation to the gravity of the offence. This is one of those cases where manifestly excessive punishment affects the exercise of one of the fundamental freedoms of the Treaty. In this connexion allow me to recall the principle laid down by the Court of Justice in its decision of 7 July 1976 in the Watson case (Case 118/75 [1975] ECR 1185) on the subject of the free movement of persons, to the effect that while the States, in carrying out their task of preserving internal public order, are entitled to impose on foreign nationals and on their own nationals who accommodate them a duty to notify the police authorities of the presence of the foreign nationals on the national territory, they cannot attach conditions to that duty such as to cause excessive difficulties to those bound by it (such as fixing unreasonable time-limits) or impose penalties disproportionate to the gravity of the offence in respect of a failure to comply with the duty. In accordance with this reasoning I feel able to conclude that the penalties inflicted for non-observance of a general duty to supply information for statistical purposes can certainly not be imposed by Member States to the same extent as they might be in circumstances in which it was sought to ensure compliance with a protective measure duly authorized in pursuance of Article 115. It is clear that the weight of the penalty must be different in the two cases. In the second case, it would be a question of ensuring the correct application of a restriction on trade necessary in order to avoid serious economic disturbances; on the other hand the first case is concerned with ensuring the performance of a straightforward operation for the purpose of providing information, involving goods which are entitled to move freely and without hindrance within the territory of the Community. It is therefore important to ensure that the obligations connected with the collection of this information should not be such as to constitute an unjustifiable restriction on the freedom of movement of goods. The statistical surveys in question may, as I have said, be used also as a basis on which a State can establish and demonstrate to the Commission the need for protective measures. But it must be emphasized too that precisely because of their derogative nature, such measures are exceptional and the effect of the Community rule which provides for their possible authorization cannot be extended beyond the time when the authority is actually exercised. For all these reasons, the conclusion must be drawn that the imposition on importers by a Member State of a duty to declare the origin of imported goods — which is compatible with the Treaty in so far as its purpose is to obtain statistical information — constitutes a measure having an effect equivalent to quantitative restrictions if authority for the marketing of the goods depends on the fulfilment of the duty, and if failure to fulfil it results in administrative and punitive sanctions which are out of proportion to the objectives described above.