7.

The reflections set out above serve to answer the first three questions referred for a preliminary ruling. The fourth question asks whether, within the context of monetary compensatory amounts, the tariff classification made by the exporting Member State is binding upon the importing Member State. This problem is wider in scope than the others as it concerns an important aspea of the operation of the system of compensatory amounts taken as a whole. The Commission has stated that for some time it has been trying to induce the Member States to accept the principle that the first tariff classification is binding, but that up to the present it has been unsuccessful. It states that until specific rules have been adopted in this regard each Member State will retain the power to decide independently on the tariff classification of products, both on importation and on exportation. A system of this kind is clearly likely to cause distortions, an example of which is supplied by the differing classifications of a single product which, as we have seen, were undertaken in the present instance by the authorities of the exporting Member State and the importing Member State. The result is in fact, as I pointed out above, that the compensatory amount paid by the Netherlands on exportation is less than the compensatory amount charged on importation by the German authorities. In practice, the use of common basic criteria for the classification of goods could reduce the occurrence of such distortions. In addition, it should be recalled that by Regulation No 1556/77 of 11 July 1977 (Official Journal L 173, p. 10), which amended the aforesaid Regulation No 1380/75, the Commission, apart from requiring undertakings to supply in the customs declaration all information concerning the composition of the goods which might be of relevance for the calculation of the monetary compensatory amounts, also provided for co-operation between the authorities of the exporting Member State and those of the importing Member State, in order to guarantee the uniform application of those rules and to avoid any irregularities. It is clear that, with regard to the composition of goods, checks which can be carried out in the country of production tend to be more precise and effective, as well as being simpler, than those which can normally be carried out when the goods are given customs clearance in the importing country. For its part Milchfutter has relied on the principle accepted by the Court of Justice in its judgment of 15 December 1976 in Case 35/76 (Simmenthal [1976] ECR 1871). That judgment stated that with regard to veterinary and public health inspections of meat the harmonized system of inspections introduced by the Community directives and based on the principle that the guarantees required by each of the Member States in this context are equivalent in nature seeks to transfer supervision to the exporting Member Sute; that therefore systematic veterinary and public health inspections at the frontier by the authorities of the importing Member Sute are rendered superfluous and accordingly no longer justified under Article 36 of the EEC Treaty. In the view of Milchfutter that principle, which is laid down in relation to the application of harmonized national schemes, should a fortiori apply within the context of the system of monetary compensation, which is a uniform Community system and is moreover financed by the Community itself. Furthermore, it adds that if the customs authorities of the importing Member State do not agree with the tariff classification made by the exporting country they can always turn to the Commission by way of the relevant management committee to obtain an opinion in order to ensure the uniform classification of the product at issue. It must be said, however, that the decided cases referred to by Milchfutter are to be distinguished from the present instance. The carrying out by the customs authorities of their normal function regarding the tariff classification of goods cannot be placed on the same footing as restrictions on imports which can be justified only on the basis of Article 36 of the Treaty. In my opinion the freedom of each Member State to undertake, through its own customs authorities, the classification of imported or exported goods, whatever the purpose of that classification, cannot, in the present state of Community law, be denied. However, nor can it be denied that the execution by each customs authority of its own duties may constitute an obstacle to trade between the Member States when, as in the present instance, it impedes the proper functioning of the Community intervention measures and may constitute an improper burden upon exporters or importers. Taking account of the interest in avoiding such disadvantages it seems to me that it would also be reasonable in this respect to apply a criterion such as to exclude systematic national checks, similar to that which the Court held to be applicable with regard to veterinary and public health inspections. In substance, the customs authorities of the importing Member Sute should normally accept, without the need for any check, the classification made by the exporting Member State; that does not, however, prejudice their power to re-inspect the goods and, where necessary, to make an independent classification. In view of the clear requirements of Community cooperation, and until rules excluding the repetition of inspections have been adopted, the exercise of that power should be restricted to those cases in which there is reliable evidence for doubts as to whether the decision of the customs authority in the Sute of origin was correct. In such cases a different classification from that in the State of origin would be permissible only if it were shown, in the light of the uniform criteria which I have sought to set out above, that the preceding classification was incorrect.