Judgment of the Court of 15 December 1971. - Schleswig-Holsteinische landwirtschaftliche Hauptgenossenschaft eGmbH v Hauptzollamt Itzehoe. - Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. - Day of importation. - Case 35-71.



European Court reports 1971 Page 01083

Danish special edition Page 00327

Greek special edition Page 01087

Portuguese special edition Page 00433



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - LEVY - APPLICATION - DAY OF IMPORTATION - CONCEPT - SCOPE WITHIN THE COMMUNITY

( EEC TREATY, ARTICLE 40 )

2 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - LEVY - PURPOSE - RATE OF LEVY

( EEC TREATY, ARTICLE 40 )

3 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - LEVY - APPLICATION - GOODS STORED UNDER DEFERRED LEVY SYSTEM - DAY OF IMPORTATION - CONCEPT - ENTRY OF GOODS INTO FREE CIRCULATION - COMPETENCE OF NATIONAL LEGISLATION

( REGULATION NO 120/67 OF THE COUNCIL, ARTICLE 15 )

4 . AGRICULTURE - COMMON ORGANIZATION OF THE MARKETS - CEREALS - LEVY FIXED IN ADVANCE - RATE APPLICABLE - GOODS STORED UNDER DEFERRED LEVY SYSTEM - EXPIRY OF THE VALIDITY OF THE IMPORT LICENCE - REMOVAL OF GOODS FROM WAREHOUSE - APPLICATION OF THE RATE APPLICABLE ON DAY OF REMOVAL

( REGULATION NO 120/67 OF THE COUNCIL, ARTICLE 15 )

Summary

1 . THE CONCEPT " DAY OF IMPORTATION ", WHICH IS CONCLUSIVE FOR THE PURPOSES OF THE APPLICATION OF THE LEVY SCHEME MUST HAVE THE SAME MEANING IN ALL THE MEMBER STATES, SINCE OTHERWISE THERE IS A DANGER THAT DIFFERENT RATES OF LEVY WOULD BE APPLIED TO GOODS WHICH ARE IN THE SAME SITUATION ECONOMICALLY AT THE SAME DATE AND THE INTRODUCTION OF WHICH INTO THE TERRITORY OF THE MEMBER STATES HAS COMPARABLE EFFECTS ON THE MARKET IN AGRICULTURAL PRODUCTS . THIS MEANING IS TO BE INFERRED FROM THE PURPOSE OF THE LEVY SYSTEM .

2 . THE LEVIES ARE MAINLY INTENDED TO PROTECT AND STABILIZE THE COMMUNITY MARKET, IN PARTICULAR BY PREVENTING FLUCTUATIONS IN WORLD MARKET PRICES FROM HAVING REPERCUSSIONS WITHIN THE COMMUNITY .

THIS AIM IS BEST ACHIEVED IF THE LEVY IS FIXED ON THE BASIS OF THE DATE FROM WHICH THE IMPORTED GOODS EXERCISE AN INFLUENCE ON THE INTERNAL MARKET OF THE COMMUNITY, THAT IS TO SAY, THE DATE ON WHICH THEY FINALLY REACH THIS MARKET AND ENTER INTO COMPETITION WITH DOMESTIC PRODUCTS . THE RATE OF LEVY APPLICABLE MUST THEREFORE BE THAT IN FORCE ON THE DATE ON WHICH THE GOODS ARE IRREVOCABLY PUT INTO FREE CIRCULATION .

3 . AS REGARDS GOODS WHICH ARE STORED IN DEFERRED LEVY WAREHOUSES ( ABSCHOEPFUNGSAUFSCHUBLAGER ) ARTICLE 15 OF REGULATION NO 120/67 OF THE COUNCIL OF THE EUROPEAN COMMUNITIES MUST BE INTERPRETED AS MEANING THAT THE DAY OF IMPORTATION OR OF THE EFFECTING OF THE IMPORTATION IS THE DAY ON WHICH THE GOODS ARE REMOVED FROM THE WAREHOUSE, WHICH IMPLIES THAT THEY ARE IRREVOCABLY PUT INTO FREE CIRCULATION . IT IS FOR THE LEGISLATION OF THE INDIVIDUAL MEMBER STATES TO STIPULATE IN DETAIL WHAT FACTUAL CIRCUMSTANCES OR WHAT CUSTOMS FORMALITIES FULFIL THESE CONDITIONS .

4 . WHERE GOODS IN RESPECT OF WHICH A LEVY FIXED IN ADVANCE ARE NOT REMOVED FROM STORE UNTIL AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE IMPORT LICENCE, THE RATE OF LEVY APPLICABLE ON THE DATE OF REMOVAL FROM STORE MUST BE APPLIED .

Parties

IN CASE 35/71

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT HAMBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

SCHLESWIG-HOLSTEINISCHE LANDWIRTSCHAFTLICHE HAUPTGENOSSENSCHAFT EGMBH, KIEL,

AND

HAUPTZOLLAMT ITZEHOE,

Subject of the case

ON THE INTERPRETATION OF ARTICLE 15 OF REGULATION NO 120/67/EEC OF THE COUNCIL OF 13 JUNE 1967 ( OJ, ENGLISH SPECIAL EDITION, 1967, P . 33 ) ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS,

Grounds

1 BY AN ORDER RECEIVED AT THE COURT ON 30 JUNE 1971 THE FINANZGERICHT HAMBURG, PURSUANT TO ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC, REFERRED VARIOUS QUESTIONS WHICH RELATE ESSENTIALLY TO THE INTERPRETATION OF THE TERMS " DAY OF IMPORTATION " AND " IMPORT EFFECTED " CONTAINED IN ARTICLE 15 OF REGULATION NO 120/67/EEC OF THE COUNCIL ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS .

THE FIRST QUESTION ( I ( 1 AND 2 ))

2 THE COURT IS ASKED FIRST TO DECIDE WHETHER ARTICLE 15 ( 1 ) OF THAT REGULATION MUST BE INTERPRETED AS MEANING THAT WHEN GOODS HAVE BEEN STORED IN DEFERRED DUTY WAREHOUSES, THE DATE OF THE REMOVAL OF THE GOODS FROM THE WAREHOUSE MUST BE REGARDED AS THE DAY OF IMPORTATION AND, CONSEQUENTLY, AS DETERMINING THE RATE OF LEVY . THE GROUNDS OF THE ORDER MAKING REFERENCE SHOW THAT THIS QUESTION CONCERNS IMPORTS FROM THIRD COUNTRIES INTO THE FEDERAL REPUBLIC OF GERMANY OF BARLEY STORED IN A DEFERRED DUTY WAREHOUSE . ALTHOUGH, ACCORDING TO THE GERMAN LAW IN FORCE AT THE TIME, GOODS WERE ONLY ADMITTED INTO DEFERRED DUTY WAREHOUSES AFTER THEIR CLEARANCE THROUGH CUSTOMS FOR RELEASE INTO FREE CIRCULATION, PAYMENT OF THE LEVY WAS SUSPENDED FOR THE PERIOD OF STORAGE, THE GOODS REMAIN SUBJECT TO THE SUPERVISION OF THE CUSTOMS OFFICE AND CAPABLE OF BEING RE-EXPORTED . IT MUST BE EXAMINED WHAT RATE OF LEVY IS TO BE APPLIED TO THE GOODS UPON THEIR REMOVAL FROM STORE .

3 ACCORDING TO ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 THE LEVY TO BE IMPOSED IS THE LEVY APPLICABLE ON THE DAY OF IMPORTATION . THE CONCEPT " DAY OF IMPORTATION ", WHICH IS CONCLUSIVE FOR THE PURPOSES OF THE APPLICATION OF THE LEVY SCHEME MUST HAVE THE SAME MEANING IN ALL THE MEMBER STATES, SINCE OTHERWISE THERE IS A DANGER THAT DIFFERENT RATES OF LEVY WOULD BE APPLID TO GOODS WHICH ARE IN THE SAME SITUATION ECONOMICALLY AT THE SAME DATE AND THE INTRODUCTION OF WHICH INTO THE TERRITORY OF THE MEMBER STATES HAS COMPARABLE EFFECTS ON THE MARKET IN AGRICULTURAL PRODUCTS . THIS MEANING IS TO BE INFERRED FROM THE PURPOSE OF THE LEVY SYSTEM . THE LEVIES ARE MAINLY INTENDED TO PROTECT AND STABILIZE THE COMMUNITY MARKET, IN PARTICULAR BY PREVENTING FLUCTUATIONS IN WORLD MARKET PRICES FROM HAVING REPERCUSSIONS WITHIN THE COMMUNITY . THIS AIM IS BEST ACHIEVED IF THE LEVY IS FIXED ON THE BASIS OF THE DAY FROM WHICH THE IMPORTED GOODS EXERCISE AND INFLUENCE ON THE INTERNAL MARKET OF THE COMMUNITY, THAT IS TO SAY, THE DATE ON WHICH THEY FINALLY REACH THIS MARKET AND ENTER INTO COMPETITION WITH DOMESTIC PRODUCTS . THE RATE OF LEVY APPLICABLE MUST THEREFORE BE THAT IN FORCE ON THE DATE ON WHICH THE GOODS ARE IRREVOCABLY PUT INTO FREE CIRCULATION .

4 IF THE GOODS HAVE BEEN MOVED INTO A CUSTOMS WAREHOUSE AND SUBJECTED TO SUPERVISION BY THE CUSTOMS AUTHORITIES, AND IF THEY CAN STILL BE RE-EXPORTED WITHOUT UNDUE COST, THEY CANNOT BE REGARDED AS IRREVOCABLY PUT INTO FREE CIRCULATION . THIS CONDITION IS NOT FULFILLED UNTIL THE GOODS ARE REMOVED FROM STORE . ACCORDINGLY, IN CASES SUCH AS THAT DESCRIBED IN THE QUESTION, THE DAY OF IMPORTATION WITHIN THE MEANING OF ARTICLE 15 ( 1 ) IS THE DATE OF REMOVAL FROM STORE SO THAT THE RATE OF LEVY APPLICABLE ON THIS DATE MUST BE APPLIED .

THE SECOND QUESTION ( II ( 1 AND 2 ))

5 THE COURT IS FURTHER ASKED TO DECIDE WHETHER ARTICLE 15 ( 2 ) OF REGULATION NO 120/67 MUST ALSO BE INTERPRETED AS MEANING THAT IF GOODS ARE STORED IN DEFERRED LEVY WAREHOUSES, THE IMPORT TRANSACTION MUST BE REGARDED AS EFFECTED ON THE DATE OF REMOVAL FROM STORE . IT IS EVIDENT FROM THE ORDER FOR REFERENCE THAT THIS QUESTION CONCERNS CERTAIN CONSIGNMENTS OF OATS IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY FROM A THIRD COUNTRY WHICH WERE STORED IN A DEFERRED LEVY WAREHOUSE AND FOR WHICH THERE WAS AN IMPORT LICENCE WITH A RATE OF LEVY FIXED IN ADVANCE .

6 ARTICLE 15 ( 2 ) OF REGULATION NO 120/67, WHICH DEALS WITH THE FIXING OF THE LEVY IN ADVANCE, PROVIDES, BY WAY OF EXCEPTION TO THE RULE CONTAINED IN PARAGRAPH 1, THAT THE LEVY WHICH IS APPLICABLE ON THE DAY OF SUBMISSION OF AN APPLICATION FOR THE IMPORT LICENCE IN THAT THE IMPORTER SEEKS THE BENEFIT OF THE ADVANCE FIXING OF THE LEVY MAY, AT HIS REQUEST, BE APPLIED PROVIDED THAT WHAT IS INVOLVED IS AN " IMPORT TO BE EFFECTED " DURING THE PERIOD OF VALIDITY OF THE SAID IMPORT LICENCE . FOR THE PURPOSES OF ASCERTAINING IN WHAT CASES THE IMPORT HAS TAKEN PLACE DURING THE PERIOD OF VALIDITY OF THE IMPORT LICENCE, THE COURT IS ASKED TO INTERPRET THE PHRASE " IMPORT TO BE EFFECTED " BY DECIDING AT WHAT TIME THIS OCCURS . THUS THE FINANZGERICHT SEEKS TO KNOW, BY MEANS OF THE INTERPRETATION REQUESTED, WHAT DATE IS TO BE REGARDED AS THE DAY OF IMPORTATION IN THE CASES MENTIONED IN ARTICLE 15 ( 2 ).

7 THE REASONS WHICH WERE DECISIVE FOR THE INTERPRETATION OF THE CONCEPT " DAY OF IMPORTATION " IN ARTICLE 15 ( 1 ) ALSO APPLY TO THE INTERPRETATION OF THE SAME CONCEPT IN ARTICLE 15 ( 2 ). IT MUST THEREFORE BE ANSWERED THAT THE IMPORT IS EFFECTED WHEN THE GOODS ARE REMOVED FROM STORE .

THE THIRD QUESTION ( II ( 3 ))

8 THE NATIONAL COURT FURTHER ASKS WHAT RATE OF LEVY IS APPLICABLE IF THE REMOVAL OF THE GOODS FROM DEFERRED LEVY WAREHOUSES DOES NOT TAKE PLACE UNTIL AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE IMPORT LICENCE BUT THE RATE OF LEVY WAS FIXED IN ADVANCE . IT IS APPARENT FROM THE DOCUMENTS IN THE CASE THAT ALTHOUGH THE REMOVAL OF THE GOODS STORED WAS NOTIFIED AND THE TRANSFER OUT WAS RECORDED IN THE STOCK RECORDS DURING THE PERIOD OF VALIDITY OF THE IMPORT LICENCE, MOST OF THE GOODS WERE NOT REMOVED FROM THE WAREHOUSE UNTIL AFTER EXPIRY OF THE VALIDITY OF THE IMPORT LICENCE .

9 IN ORDER TO ANSWER THIS QUESTION IT MUST FIRST BE DECIDED WHETHER THE REMOVAL FROM STORE CAN ONLY BE EFFECTED BY THE PHYSICAL REMOVAL OF THE GOODS OR WHETHER IT CAN ALSO ENSUE FROM BOOK-KEEPING OPERATIONS .

10 ALTHOUGH THE COMMUNITY LAW APPLICABLE AT THE TIME DID NOT EXPRESSLY REGULATE THIS QUESTION IT FOLLOWS FROM WHAT HAS BEEN SAID IN RELATION TO THE FIRST TWO QUESTIONS THAT IT IS NECESSARY, AND ALSO SUFFICIENT, IN ORDER TO CONSTITUTE REMOVAL FROM STORE, THAT THE GOODS ARE IRREVOCABLY PUT INTO FREE CIRCULATION . IT IS FOR THE LEGISLATION OF THE INDIVIDUAL MEMBER STATES TO STIPULATE IN DETAIL WHAT FACTUAL CIRCUMSTANCES OR WHAT CUSTOMS FORMALITIES FULFIL THIS CONDITION .

11 MOREOVER, THE RATE OF LEVY FIXED IN ADVANCE IS NO LONGER APPLICABLE IF THE GOODS ARE REMOVED FROM STORE AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE IMPORT LICENCE . IF IN SPITE OF THIS THEY ARE STILL IMPORTED, THE RATE APPLICABLE ON THE DAY OF IMPORTATION MUST BE APPLIED IN ACCORDANCE WITH ARTICLE 15 ( 1 ).

12 THEREFORE IT MUST BE HELD THAT IN THE CASE OF GOODS IN RESPECT OF WHICH THE LEVY HAS BEEN FIXED IN ADVANCE WHICH HAVE NOT BEEN REMOVED FROM STORE UNTIL AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE IMPORT LICENCE, THE RATE OF LEVY APPLICABLE ON THE DATE OF REMOVAL FROM STORE MUST BE APPLIED .

Decision on costs

13 THE COSTS INCURRED BY THE COMMISSION AND THE FEDERAL REPUBLIC OF GERMANY WHICH SUBMITTED OBSERVATIONS TO THE COURT ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE, SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 28 MAY 1970, HEREBY RULES :

1 . AS REGARDS GOODS IN DEFERRED LEVY WAREHOUSES, ARTICLE 15 OF REGULATION NO 120/67 OF THE COUNCIL OF THE EUROPEAN ECONOMIC COMMUNITY MUST BE INTERPRETED AS MEANING THAT THE DAY OF IMPORTATION OR OF THE EFFECTING OF THE IMPORT IS THE DAY ON WHICH THE GOODS ARE REMOVED FROM THE WAREHOUSE, WHICH IMPLIES THAT THEY ARE IRREVOCABLY PUT INTO FREE CIRCULATION .

2 . WHERE GOODS IN RESPECT OF WHICH THE LEVY HAS BEEN FIXED IN ADVANCE ARE NOT REMOVED FROM STORE UNTIL AFTER THE EXPIRY OF THE PERIOD OF VALIDITY OF THE IMPORT LICENCE, THE RATE OF LEVY APPLICABLE ON THE DAY OF REMOVAL FROM STORE MUST BE APPLIED .