Opinion of Mr Advocate General Elmer delivered on 27 February 1997. - Criminal proceedings against René Kieffer and Romain Thill. - Reference for a preliminary ruling: Tribunal de police, Luxembourg - Grand Duchy of Luxemburg. - Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Regulation (EEC) No 3330/91 - Statistics on the trading of goods - Detailed declaration of all intra-Community trading - Conpatibility with Articles 30 and 34 of the EC Treaty. - Case C-114/96.



European Court reports 1997 Page I-03629



Opinion of the Advocate-General

1 The question before the Court in the present case is whether Council Regulation (EEC) No 3330/91 of 7 November 1991 on the statistics relating to the trading of goods between Member States (OJ 1991 L 316, p. 1, hereinafter `the Regulation') is compatible with Article 30 of the Treaty prohibiting quantitative restrictions on imports and all measures having equivalent effect and Article 34 prohibiting quantitative restrictions on exports and all measures having equivalent effect.

The Regulation

2 The preamble to the Regulation, so far as material, includes the following recitals:

`Whereas abolishing physical barriers between Member States is necessary to complete the internal market; whereas a satisfactory level of information on the trading of goods between Member States should thus be ensured by means other than those involving checks, even indirect ones, at internal frontiers [first recital];

Whereas an analysis of the situation of the Community and the Member States after 1992 reveals that a number of specific requirements will persist as regards information on the trading of goods between Member States [second recital];

Whereas these requirements are not of a macro-economic nature, unlike those relating, for example, to national accounts or the balance of payments, and many of them cannot be met by means of highly aggregated data alone; whereas matters such as trade policy, sectoral analyses, competition rules, the management and guidance of agriculture and fisheries, regional development, energy projections and the organization of transport must on the contrary be based on statistical documentation providing the most up-to-date, accurate and detailed view of the internal market [third recital];

Whereas it is precisely information on the trading of goods between Member States which will contribute to measuring the progress of the internal market, thereby speeding up its completion and consolidating it on a sound basis; whereas this kind of information could prove to be one of the means of assessing the development of economic and social cohesion [fourth recital];

Whereas until the end of 1992 statistics relating to the trading of goods between Member States will benefit from the formalities, documentation and controls which the customs authorities, for their own requirements or for those of other departments, prescribe for consignors and consignees of goods in circulation between Member States, but which will disappear through the elimination of physical frontiers and tax barriers [fifth recital];

Whereas it will consequently be necessary to collect directly from the consignors and consignees the data necessary to compile statistics relating to the trading of goods between Member States, using methods and techniques which will ensure that they are exhaustive, reliable and up to date, without giving rise for the parties concerned, in particular for small and medium-sized businesses, to a burden out of proportion to the results which users of the said statistics can reasonably expect' [sixth recital].

3 Under the first subparagraph of Article 3(1) of the Regulation, all goods which move from one Member State to another are to be the subject of statistics relating to the trading of goods between Member States.

4 Chapter II of the Regulation deals with the permanent statistical collection system, described in Article 6 as the `Intrastat system', which applies, under Article 7(4), to trade between Member States.

5 Under Article 8, the obligation to supply the information required by the Intrastat system is incumbent on any natural or legal person who is involved in the trading of goods between Member States; private individuals are, however, exempt from this obligation, under Article 5. The information is to be supplied on a monthly basis.

6 Under Article 9(1), the party responsible for providing the information required by the Intrastat system may transfer the task of providing the information to a third party residing in a Member State, but that transfer in no way reduces the responsibility of the said party. Failure to fulfil that obligation is punishable under Article 14 by the penalties which Member States lay down in accordance with their national provisions.

According to information provided, in Luxembourg persons in default are liable to fines of LFR 10 001 to 100 000.

7 Chapter III of the Regulation concerns statistics on trade between Member States.

8 Article 20(5) of that chapter prescribes that the party responsible for providing the information referred to in Article 8 is the natural or legal person who (a) residing in the Member State of dispatch, has concluded the contract, with the exception of transport contracts, giving rise to the dispatch of goods or, failing this, dispatches or provides for the dispatch of the goods or, failing this, is in possession of the goods which are the subject of the dispatch, and (b) residing in the Member State of arrival, has concluded the contract, with the exception of transport contracts, giving rise to the delivery of goods or, failing this, takes possession or provides for possession to be taken of the goods or, failing this, is in possession of the goods which are the subject of the delivery.

9 Article 21 reads as follows:

`On the statistical data medium to be transmitted to the competent departments:

- without prejudice to Article 34, goods shall be designated in such a way as to permit easy and precise classification in the finest relevant subdivision of the version of the combined nomenclature in force at the time;

- the eight-digit code number of the corresponding subdivision of the combined nomenclature shall also be given for each type of goods.'

10 Article 23(1) and (2) provides as follows:

`1. For each type of goods, the statistical data medium to be transmitted to the competent departments must provide the following data:

(a) in the Member State of arrival, the Member State of consignment of the goods, within the meaning of Article 24(1);

(b) in the Member State of dispatch, the Member State of destination of the goods, within the meaning of Article 24(2);

(c) the quantity of goods, in net mass and supplementary units;

(d) the value of the goods;

(e) the nature of the transaction;

(f) the delivery terms;

(g) the presumed mode of transport.

2. Member States may not prescribe that data other than those listed in paragraph 1 be provided on the statistical data medium, except for the following:

(a) in the Member State of arrival, the country of origin; however, this item may be required only as allowed by Community law;

(b) in the Member State of dispatch, the region of origin; in the Member State of arrival, the region of destination;

(c) in the Member State of dispatch, the port or airport of loading; in the Member State of arrival, the port or airport of unloading;

(d) in the Member State of dispatch and in the Member State of arrival, the presumed port or airport of transhipment situated in another Member State provided the latter prepares transit statistics;

(e) where appropriate, statistical procedure.'

11 Article 28 contains certain thresholds for suspension or reduction of the obligations; it distinguishes between exclusion, assimilation and simplification thresholds.

Exclusion thresholds apply, under Article 28(3) in conjunction with the second paragraph of Article 5, to parties responsible for providing information who come under one of the special schemes provided for by Articles 24 and 25 of the Sixth VAT Directive 77/388/EEC, (1) to institutional parties not liable to account for VAT and to parties exempt from VAT who, pursuant to Article 28(7) of Directive 77/388, are not required to submit a tax declaration.

Assimilation thresholds exempt, under Article 28(4), parties responsible for providing information from the obligation to make declarations under the Regulation, that obligation being satisfied by the periodic tax declaration which they make as parties liable to account for VAT.

Assimilation and simplification thresholds, which are expressed in annual values of intra-Community trade operations, may, under Article 28(6), vary from one Member State to another, by product group and by period.

Under Article 28(8), simplification thresholds are set at ECU 100 000 for dispatch and ECU 100 000 for arrival; however, Member States may, under Article 28(9), set assimilation and simplification thresholds at higher levels. The simplification threshold applicable to Luxembourg is set at LFR 10 000 000. Below the simplification thresholds the parties responsible for providing information must state the type of goods, the eight-digit code number, the Member State of consignment or destination, and the value of the goods.

12 Article 34 of the Regulation reads as follows:

`1. In respect both of goods subject to the Intrastat system and of other goods, the Commission may, for the purpose of facilitating the task of the parties responsible for providing information, establish in accordance with Article 30 simplified data collection procedures and in particular create the conditions for increased use of automatic data processing and electronic data transmission.

2. In order to take account of their individual administrative arrangements, Member States may establish simplified procedures other than those referred to in paragraph 1, provided that those responsible for providing information may choose the procedures they will use.

Member States exercising this option shall inform the Commission accordingly.'

Facts of the case

13 René Kieffer and Romain Thill are the managers of Établissements Kieffer & Thill, a limited company whose object, according to its statutes, is to deal in motor cars. The company inter alia buys and sells accident-damaged and secondhand cars, spare parts, and car accessories of all sorts. It is common ground that the value of the undertaking's exports to other Member States each year exceeds the simplification threshold of LFR 10 000 000 under Article 28(9) of the Regulation.

14 Mr Kieffer and Mr Thill are charged with infringing, in 1993 and 1994, the provisions of Articles 3, 8 and 14 of the Regulation, by failing to transmit the information on the company's imports and exports required under the Intrastat system.

15 They argue, however, that because of the burden it lays on undertakings as a result of the obligation to provide highly detailed information, the Regulation has the character of a measure having equivalent effect to a quantitative restriction on imports and exports, so that it infringes Articles 30 and 34 of the Treaty.

The questions referred for a preliminary ruling

16 By judgment of 2 April 1996 the Tribunal de Police (Local Criminal Court), Luxembourg, referred the following questions to the Court:

`1. In so far as it requires Member States to obtain from every undertaking exceeding the stipulated exclusion, assimilation and simplification thresholds a detailed declaration of all its intra-Community imports and exports, has Council Regulation (EEC) No 3330/91 of 7 November 1991 introduced a measure having an effect equivalent to a quantitative restriction on trade in goods between Member States prohibited by Articles 30 and 34 of the EEC Treaty?

2. Does the obligation to provide the data required under the Intrastat collection system in both the importing and the exporting country, breach of which is subject to criminal sanctions under Luxembourg law in the event of non-submission of the information requested to the Service Central de la Statistique et des Études Économiques, constitute for traders a constraint that is unjustified and disproportionate in relation to the objective of general interest pursued and is it therefore contrary to the third paragraph of Article 3b of the EEC Treaty as inserted by Article G(5) of the Treaty on European Union signed at Maastricht on 7 February 1992?'

Procedure before the Court

17 Mr Kieffer and Mr Thill submit that Articles 30 and 34 of the Treaty are also binding on the Community legislature and that the Regulation constitutes an obstacle to the free movement of goods. Especially for small and medium-sized undertakings, having to declare the information required, which is particularly detailed, is a source of both costs and constraints. Thus an undertaking has to find out, for each transaction, the correct eight-digit code of the combined nomenclature. The burden resulting from the obligation to provide information is increased by the fact that the obligation applies to all transactions, whatever their value. Mr Kieffer and Mr Thill further submit that the Regulation does not comply with the principle of proportionality, since it imposes constraints which go beyond what is necessary. That is the case with respect both to the level of detail required and to the obligation to provide information in both the Member State of dispatch and the Member State of arrival.

18 The Luxembourg Government, supported by the Council and Commission, submits that the Regulation does not constitute a measure having equivalent effect within Articles 30 and 34 of the Treaty. The Regulation's effect on the free movement of goods is too uncertain and hypothetical for Articles 30 and 34 to apply. Moreover, the Regulation pursues an objective consistent with the Community interest, since the subject-matter of the information is important for the internal market and for several Community policies.

The Intrastat system in several respects means a simplification compared to the previous system which was based on documentation required by the customs authorities when a frontier was crossed. It may be simplified further yet, thanks to the use of the IDEP/CN8 data-processing program, supplied free of charge, which contains inter alia all the eight-digit codes of the combined nomenclature with the relevant search function. Moreover, for most undertakings, the information is already in their possession.

The Luxembourg Government, the Council and the Commission further submit that the Intrastat system is not contrary to the principle of proportionality. It is settled case-law that that principle extends to the application of the Treaty provisions on the free movement of goods, so that there is no need to have recourse to the third paragraph of Article 3b of the Treaty. The volume of information required by the Regulation is necessary for drawing up useful statistics. The various thresholds have the effect of exempting a series of operators from the obligation to provide information. Since different thresholds apply in different Member States, however, it is necessary to prescribe an obligation to provide information for both the consignor and the consignee.

Opinion

19 The third paragraph of Article 3b of the Treaty, referred to by the national court, which was inserted into the Treaty by the Treaty on European Union and states that the Community is not to go beyond what is necessary to achieve the objectives of the Treaty, essentially expresses the Community principle of proportionality, which, according to settled case-law, is an essential element in the interpretation of Articles 30 and 34 of the Treaty. I consider that there is no need in the present case to undertake a separate interpretation of the third paragraph of Article 3b, which moreover only entered into force on 1 November 1993, in other words during the period material for the present case.

20 The basic question here is thus in fact whether the Regulation is contrary to Articles 30 and 34 of the Treaty, and in this respect it should be examined whether the Regulation constitutes an obstacle to intra-Community trade, whether any obstacle there may be is justified by considerations of the general interest, and in that connection whether the Regulation imposes constraints going beyond what is necessary for safeguarding that general interest.

21 The Court has consistently held that the prohibitions in Articles 30 and 34 do not apply only to national measures. Those provisions apply equally to measures of the Community institutions. (2)

22 It is settled case-law that Article 30 extends to measures capable of hindering, directly or indirectly, actually or potentially, intra-Community trade, (3) whereas Article 34 relates to measures which have the specific effect of restricting export operations in relation to trade within the Member State concerned. (4) It also follows from the Court's case-law that there is no minimum threshold for the application of Articles 30 and 34, so that no distinction is drawn according to the effect of a measure on trade within the Community. (5) Measures which are considered to affect trade between Member States only in an uncertain way do not, however, according to the case-law, come under the Treaty provision concerning the free movement of goods. (6)

23 Under the Intrastat system undertakings must provide on a monthly basis detailed information on their import or export transactions. There is therefore a burden which specifically falls on cross-frontier transactions. Even if the information is to a large extent information already in the undertaking's possession, drawing up the declarations required will both take time and generate costs, in particular for small and medium-sized undertakings. Moreover, there is a direct relationship between the burden and the fact that the goods cross the frontier, since it is the cross-frontier transaction which in itself triggers the obligation to provide information. The restrictive effects on the free movement of goods which are liable to be caused by the system are not, in my opinion, so hypothetical that the system remains outside the scope of the provisions on the free movement of goods.

24 A Community measure whose aim is to promote the implementation of the internal market may not, however, be considered as an obstacle to trade in breach of Articles 30 and 34 of the Treaty unless it goes beyond what is necessary for achieving the objective. (7)

The Court has moreover expressly acknowledged that obstacles to the free movement of goods may be necessary in order to obtain reasonably complete and accurate information on movements of goods within the Community. (8)

25 The Regulation was adopted on the basis of Article 100a of the Treaty, which relates to harmonization measures concerning the functioning of the internal market. A direct information system had become necessary as a result of the abolition of checks at internal frontiers. As appears from the third recital in the preamble to the Regulation, reliable and sufficiently detailed statistical information is important for a number of Community policies, including trade policy, competition rules, regional development and transport. For example, statistics on the development of flows of goods and the prices of transactions on a particular product market may help uncover agreements between undertakings restricting competition, relating to dividing up the market or to selling prices, contrary to Article 85 of the Treaty. Moreover, drawing up detailed statistics is of vital importance for monitoring the progress and implementation of the internal market: see the fifth recital in the preamble. The statistics may, for example, reveal obstacles to trade and thereby contribute to the adoption of measures by the Commission in the form of specific legal proceedings or proposals for legal acts of a general character. If one or more Member States were, for instance, to introduce new technical requirements in a particular field, the Intrastat system would be able to give a picture of such a measure's effects on trade and thereby assist the Commission to decide whether and how to intervene.

26 In view of the above considerations, I consider that the Regulation pursues a general objective in the Community interest and is therefore not contrary to Articles 30 and 34 of the Treaty. The decisive question is thus whether the Regulation interferes more than necessary and so conflicts with the principle of proportionality. In assessing whether that is so, it must be borne in mind that the Community legislature has a margin of discretion when adopting harmonization measures. (9)

27 Under Article 23(1) of the Regulation, information must be provided on the Member State of dispatch and the Member State of arrival, the quantity and value of the goods, the nature of the transaction, the delivery terms and the presumed mode of transport. In addition, under Article 21, the eight-digit code number of the combined nomenclature must be given for each type of goods.

28 All those categories of information are relevant for ensuring the objectives pursued by the Regulation. The mode of transport, for example, is relevant for statistics on the quantities of goods carried by lorry and train respectively, which is of interest for transport policy and for possible decisions on developing trans-European networks. Information on delivery terms may be relevant for competition policy, since it may give an indication of the market conduct of undertakings. The eight-digit code number appears necessary with respect to the processing of the information collected, since it simplifies the breakdown and classification of the very great number of declarations. It would scarcely be possible in practice for the relevant offices to carry out that classification themselves. Moreover, it appears that the burden involved for the undertaking will tend to diminish once it has, after a transitional period, classified the import and export transactions which normally form part of its activities. The burden may be further lightened by the use of modern technology. (10)

29 Consequently, in my opinion, only two elements of the Intrastat system can be called into question, namely the requirement that the same transaction has to be declared by both the exporter and the importer, and the fact that the obligation to provide information extends to all movements of goods. It may be noted here that the simplification thresholds do not exempt undertakings altogether from the obligation to provide information, but merely reduce the number of items of information to be transmitted.

30 As to the first element, I observe that it appears that it is the obligation to declare import transactions in particular which may be burdensome. The production of an undertaking will normally be characterized by a certain continuity in terms of products and time. That will not necessarily be the case to the same extent for an undertaking's purchases, for example, of raw materials, components and equipment. These are likely to vary considerably as regards frequency and to vary in nature and volume. The twofold obligation to provide information is necessary, however, according to the Commission, because of the thresholds contained in the Regulation which are not the same in all Member States. If the purchaser, as opposed to the seller, is subject to the obligation to make a declaration, the system of the Regulation ensures that the transaction in question will be included in the statistics. The twofold obligation to provide information is therefore of importance for the extent of the statistical material. The Community legislature considered that that justified extending to the importer the obligation to provide information. The Community legislature and the authorities who process and use the statistics in question are, in my opinion, best placed to make the choice which is the basis of the determination of which information is necessary. The Court cannot reject that choice unless it is manifest that the requirements relating to information go beyond what is necessary. In my opinion, there is nothing to suggest that the legislature exceeded its margin of discretion.

31 As to the requirement that all transactions are to be declared, I observe that it appears from the sixth recital in the preamble to the Regulation that the Community legislature was careful not to impose a burden on undertakings which was out of proportion to the results which the users of the statistics could reasonably expect. That also follows from the various thresholds included in the Regulation. The effect of the exclusion and assimilation thresholds is thus that a number of undertakings are not required to make declarations, other than those arising from the obligation to account for VAT periodically. It appears from the written observations of the Luxembourg Government that around two-thirds of undertakings are thereby exempted from the obligation to provide information. The simplification thresholds mean that undertakings which engage in cross-frontier transactions only to a limited extent are obliged to declare only a small amount of information. Moreover, even in that case, the burden must be assessed in the light of the possibility of using modern technology, in particular the IDEP/CN8 computer program, which is supplied free. Finally, it should be taken into consideration that the system is a new one, setting up a direct declaration scheme for the first time. The Community legislature should therefore be allowed a certain time to evaluate the functioning of the system in practice and on that basis to decide whether a relaxation is appropriate. It may be noted in this respect that the Commission, by Regulation (EC) No 2820/94, (11) introduced a threshold for transactions, under which transactions not exceeding ECU 100 may be entered under global heading 99 50 00 00 of the combined nomenclature. Moreover, only the Member State of dispatch, the Member State of consignment, and the value of the goods need be stated. Consequently, I consider that, from the point of view also of the extent of the obligation to provide information, the Community legislature may not be regarded as having exceeded the limits of its discretion.

Conclusion

32 For the above reasons, I propose that the Court should give the following answer to the questions put by the Tribunal de Police, Luxembourg:

Examination of Council Regulation (EEC) No 3330/91 of 7 November 1991 on the statistics relating to the trading of goods between Member States, in the light of the judgment making the reference and the other elements in the case, has not disclosed any factors of such a kind as to cast doubt on that regulation's validity.

(1) - Sixth Council Directive of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), as amended by Council Directive 95/7/EC of 10 April 1995 amending Directive 77/388/EEC and introducing new simplification measures with regard to value added tax - scope of certain exemptions and practical arrangements for implementing them (OJ 1995 L 102, p. 18). Articles 24 and 25 relate respectively to a special scheme for small undertakings and a common flat-rate scheme for farmers.

(2) - See the judgments in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others v Paranova [1996] ECR I-3457, paragraph 36, and Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR I-3879, paragraph 11.

(3) - See, for example, Case C-323/93 Centre d'Insémination de la Crespelle v Coopérative de la Mayenne [1994] ECR I-5077 and Case 8/74 Dassonville [1974] ECR 837.

(4) - See, for example, Case 15/79 Groenveld v Produktschap voor Vee en Vlees [1979] ECR 3409, paragraph 7. I see no need to express an opinion here on the effect on that case-law of the judgment in Case C-384/93 Alpine Investments [1995] ECR I-1141.

(5) - See Case C-126/91 Yves Rocher [1993] ECR I-2361, paragraph 21.

(6) - See on this point Case C-379/92 Peralta [1994] ECR I-3453, paragraph 24.

(7) - See Case 46/76 Bauhuis v Netherlands [1977] ECR 5, paragraphs 20, 30 and 31, Meyhui, cited in note 2 above, paragraph 20, and Case C-426/93 Germany v Council [1995] ECR I-3723.

(8) - See Case 159/78 Commission v Italy [1979] ECR 3247, paragraph 7.

(9) - See Meyhui, cited in note 2 above, paragraph 21.

(10) - It follows from paragraph 49 of the Germany v Council judgment, cited in note 7 above, that in assessing the extent of the burden relating to an obligation, the possibility of making use of modern technologies must be taken into account.

(11) - Commission Regulation (EC) No 2820/94 of 21 November 1994 fixing a threshold value for individual transactions in the context of statistics relating to trade between Member States (OJ 1994 L 299, p. 1).