Opinion of Mr Advocate General Darmon delivered on 9 November 1989. - Trend-Moden Textilhandels GmbH Contre Hauptzollamt Emmerich. - Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany. - Free movement of goods - Proof of Community status of goods. - Case C-117/88.



European Court reports 1990 Page I-00631



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . The Finanzgericht ( Finance Court ) Duesseldorf has referred to the Court of Justice for a preliminary ruling a question concerning the means used to prove the Community origin of goods in customs matters .

2 . The facts of the case are known to the Court . The German customs authorities carried out an investigation of the imports of Trend-Moden, a company dealing in textiles based in Rees in the Federal Republic of Germany . The customs authorities found that between March 1980 and March 1981 Trend-Moden received textiles from the Netherlands on which no customs duties had been paid . It then asked Trend-Moden to pay DM 29 890.90 in unpaid customs duties . Trend-Moden maintained that the goods in question originated in the Community and were not therefore subject to customs duties . It produced three documents from its Netherlands suppliers, the first two certifying that the goods had been produced within the Community and the third certifying that the goods came from a depot in Amsterdam . However, the German authorities took the view that those documents could not be taken into account in order to prove the Community status of the goods in question and that only transit documents T2 or T2L could be accepted for that purpose .

3 . The Finanzgericht Duesseldorf, before whom the dispute was brought, referred to the Court of Justice for a preliminary ruling a question which asks in substance whether Article 9(2 ) of the EEC Treaty provides that the production of a transit document pursuant to Articles 1(4 ) and 9 of Regulation ( EEC ) No 222/77 ( 1 ) is the only means of proving the Community origin of goods .

4 . Regulation No 222/77 provides for two distinct Community transit procedures . ( 2 ) The first, referred to as the external Community transit procedure, concerns essentially goods which do not satisfy the conditions laid down in Articles 9 and 10 of the EEC Treaty, in other words goods which come from non-member countries and are not in free circulation . The second, referred to as the internal Community transit procedure, applies essentially to goods originating in the Member States or in free circulation; those goods are referred to as "Community goods ". ( 3 ) Article 1(4 ) of Regulation No 222/77 establishes a presumption by providing that Community goods are goods "properly imported into the territory of a Member State across an internal frontier ... unless an external Community transit document is produced in respect thereof ". ( 4 ) Article 39 provides that "any goods that are to be carried under the procedure for internal Community transit shall be covered by a T2 declaration ". Finally, Article 9 provides that where, in the cases provided for in that regulation, the free movement of goods depends on the presentation of an internal Community transit document, "the party concerned may, for any valid reason, obtain that document subsequently from the competent authorities of the Member State of departure ".

5 . Under Article 69 et seq . of Regulation ( EEC ) No 223/77, ( 5 ) which was applicable at the time of the facts of the main dispute, the Community origin of goods may also be proved by the production of a T2L document when the goods are transported directly from one Member State to another . ( 6 ) Document T2L may also be issued retroactively without it being necessary, as it is under Article 9 of Regulation No 222/77, to state a valid reason . ( 7 )

6 . It should be pointed out, finally, that Regulation No 223/77 also introduces Control Copy T5 which must be produced to prove that "the conditions prescribed by a Community measure as to the use and/or destination of goods imported into, exported from, or moving within the Community have been complied with ". ( 8 )

7 . The Court of Justice has already given its view on the philosophy behind a system of proof of that kind . In its judgment in Case 12/70, ( 9 ) the Court stated, with regard to certificate DD4 for goods subject to agricultural levies, that

"it is ... necessary for the use of certificate DD4 as a standard means of proof to be absolutely identical in all the Member States", ( 10 )

and the Court added that

"this requirement would be invalidated if national administrations were able to employ other means of proof", ( 11 )

before concluding that

"importers of goods from another Member State may only benefit from the intra-Community scheme in respect of goods covered by this certificate ". ( 12 )

8 . In its judgment in Joined Cases 15 and 16/76, ( 13 ) which concerned documents required pursuant to Regulation ( EEC ) No 2315/69 of the Commission of 19 November 1969, which has now been replaced by Regulation No 223/77 - the documents in question were to some extent the predecessors of Control Copy T5 - the Court stated that

"the Community rules in this field are drawn up in terms which do not give the national authorities the option of accepting any other proof that the goods have been placed under control in the importing country than the formal proof provided by the control copy of the transit document ...". ( 14 )

9 . With regard to the T5 document itself, in the judgment in Case 15/83 the Court emphasized that

"since the purpose of those rules is to exclude the possibility of aid being paid twice, as well as that of the goods re-entering normal market channels, and thereby to prevent fraudulent practices, the formalities regarding proof must continue to be rigorously applied both to exports and to inland deliveries ". ( 15 )

10 . When compared with the grounds of the order making the reference, the question referred for a preliminary ruling, as formulated, appears to ask the Court whether Regulations Nos 222/77 and 223/77 are invalid, having regard to Article 9(1 ) of the EEC Treaty . The basic argument in the order making the reference is that the absence of transit documents as required under those regulations leads to the levying of import duties even though there is otherwise no doubt as to the Community status of the goods .

11 . In my view that argument is not relevant; such requirements seek to safeguard objectives the importance of which has already been emphasized by the Court, namely the elimination of barriers to trade between Member States by harmonizing formalities, ( 16 ) the need for all economic operators in the Community to be subject to the same rules of proof and the prevention of fraud . The provisions of Regulations Nos 222/77 and 223/77 do not in my opinion impose obligations which are disproportionate to what is strictly necessary to achieve those objectives . Moreover, Article 9 of Regulation No 222/77 permits those concerned, and in my view this is fundamentally important, to obtain internal Community transit documents retroactively from the competent authorities of the Member State of departure . Article 71(3 ) of Regulation No 223/77 contains a similar provision with regard to the T2L document . Consequently, the fact that internal Community transit documents are not presented when the goods are transported does not automatically lead to the levying of customs duties since their Community status can easily be proved subsequently . The levying of customs duties in respect of goods originating in the Community can thus be easily avoided .

12 . I conclude therefore that the Court should rule that :

"Article 9(2 ) of the EEC Treaty must be interpreted as meaning that it permits the principle that the Community status of goods may be proved only by producing the internal Community transit documents referred to in Article 39 of Council Regulation ( EEC ) No 222/77 of 13 December 1976 on Community transit, or the documents referred to in Articles 69 and 70 of Commission Regulation ( EEC ) No 223/77 of 22 December 1976 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure ."

(*) Original language : French .

( 1 ) Council Regulation ( EEC ) No 222/77 of 13 December 1976 on Community transit ( OJ 1977, L 38, p . 1 ).

( 2 ) Article 1(1 ).

( 3 ) Article 1(3)(a ).

( 4 ) My emphasis .

( 5 ) Commission Regulation ( EEC ) No 223/77 of 22 December 1976 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure ( OJ 1977, L 38, p . 20 ), which was replaced by Commission Regulation ( EEC ) No 1062/87 of 27 March 1987 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure, which entered into force on 1 January 1988 ( OJ 1987, L 107, p . 1 ); the provisions of Articles 83 and 84(3 ) of Regulation No 1062/87 are similar to those of Articles 70 and 71(3 ) of Regulation No 223/77 .

( 6 ) Article 70 .

( 7 ) Article 71(3 ).

( 8 ) Article 10 .

( 9 ) Judgment of 22 October 1970 in Case 12/70 Craeynest v Belgium (( 1970 )) ECR 905 .

( 10 ) Paragraph 7 .

( 11 ) Paragraph 8 .

( 12 ) Paragraph 12 .

( 13 ) Judgment of 7 February 1979 in Joined Cases 15 and 16/76 France v Commission (( 1979 )) ECR 321 .

( 14 ) Paragraph 14 .

( 15 ) Judgment of 17 May 1984 in Case 15/83 Denkavit Nederland v Hoofdproduktschap voor Akkerbouwprodukten (( 1984 )) ECR 2171, paragraph 29 .

( 16 ) Judgment in Case 12/70, cited above, paragraph 5 .