1.

The first question relates to the interpretation of the term ‘day of importation’ used in Article 15 (1) of Regulation No 120/67 with regard to import transactions effected through deferred levy warehouses. In this respect it must be ascertained whether the day of removal from store may be regarded as the day of importation. Since this concept is defined neither in the basic regulation establishing the common organization of the market nor in the implementing regulations it may first be asked whether a Community definition is at all possible or whether the necessary definition was left to the national legislature. This latter view is supported by a number of indications in the written submissions of the Federal Republic of Germany which also extend to the concept at issue in the second question. On the other hand the Federal Republic emphasized that the national legislature could not adopt any provisions which affect the scope of Regulation No 120/67 and it referred to the necessity, in clarifying the concept, to observe the sense and purpose of the levy rules. Accordingly it expressly rejected in its oral observations that any national authority is empowered to define the concept of the ‘day of importation’. This view is also shared by the plaintiff and the Commission and there are weighty reasons which suggest that it is correct. All those concerned correctly point out that in the decided cases it has been repeatedly emphasized that in cases related to import duty tariffs the Member States do not have the power to adopt implementing provisions which may affect the scope of Community law concepts(Cases 40/69 Hauptzollamt Hamburg-Oberelbe v Firma Bollman [1970] ECR 69; 72/69 Hauptzollantt Bremen-Freihafen v Bremer Handelsgesellschaft mbH [1970] ECR 427; 74/69 Hauptzollamt Bremen-Freihafen v Waren-Import-Gesellschaft Krohn Et Co. [1970] ECR 451; 14/70 Deutsche Bakels GmbH v Oberfinanzdirektion Munchen [1970] ECR 1001). Within the context of the organizations of the markets in agriculture this also applies to the law relating to customs matters(Case 39/70 Norddeutsches Vieh- und Fleischkonter GmbH v Hauptzollamt Hamburg-St. Annen [1971] ECR 49). With regard to Regulation No 120/67 it must not be forgotten in the present connexion that it established the definitive organization of the market in cereals and together with its implementing regulations it contains very detailed rules for the whole market. Under it all measures which shape the market are transferred to the Community. Above all the instrument of the levy is defined in detail. In order that the fluctuations in the world market price can be taken into account the levies are fixed each day by the Commission and immediately become effective. It is certainly not easily compatible with this objective to assign to the Member States the task of defining the day of importation. It would then have to be accepted that in certain circumstances substantial differences in time might exist and that goods which come into free circulation in the Community at the same time might possibly be subject to substantially different levies. This applies particularly to warehouse traffic, that is, to imports which are effected through warehouses and in respect of which clearance for release into free circulation may be delayed for a period of years (according to the Council Directive relating to warehousing at present in force, up to 5 years). The fact that in such a case one Member State may regard the putting into storage as the day of importation while another regards the final release into free circulation as the day of importation can certainly not be reconciled with the principle function of the levies which is to ensure stability of the internal level of prices, and it is therefore unacceptable. Thus it must be assumed that a Community definition must be given for the concept ‘day of importation’ so that, as the Commission emphasized, at least its essential elements are given the same meaning throughout the Community. If one accordingly attempts to define more closely the concept on the basis of considerations of Community law then, as the plaintiff pointed out, it is above all important to ascertain the sense and purpose of Article 15 (1) of Regulation No 120/67 and thus its function within the context of the provisions relating to levies and imports of the common organization of the market in cereals. The aim of the levy is, as I have already stated, to compensate for fluctuations in the world market prices and thus to ensure the stability of the level of prices on the market within the Community. It is certainly in accordance with this purpose to fix the specific amount of the levy by reference to a time at which the goods in question influence the market decisively. That is the time at which it is certain that the goods actually reach the market within the Community. The concept ‘day of importation’ is therefore based on the assumption that on this day the imported goods are finally released into free circulation and that the importation can no longer be revoked. In the case of trade through warehouses this can be the day of the removal from store if the goods are cleared for release into free circulation at this time. Clearly this is in accordance with the provisions of German customs law laid down in 1968 in the case of imports via deferred duty warehouses. Although it was said on this point that when the goods were put into store they were cleared for free circulation, there none the less remained the possibility of re-exporting them with exemption from the obligation to pay import duty and therefore the final fixing of the levy was only made when the goods were removed from the deferred duty warehouse. Thus with regard to the problems at issue in the main action it may be said, in concurrence with the view expressed by all parties, that the day of removal from the deferred duty warehouse must be taken as the day of importation. This is clear from the abovementioned basic considerations but there are additional grounds for holding that this view is correct. For example reference may be made to Regulation No 119 of the Commission of 4 August 1962 (OJ 1962, p. 2017) ‘on the transitional provisions applicable to grain that was stored in the Federal Republic of Germany in a bonded warehouse or a deferred levy warehouse before 30 July 1962’. This regulation regards such goods put into store before the entry into force of the first organization of the market in cereals as ‘exported and re-imported’ and provides that the day of the removal from store shall be deemed to be the day of importation. It is significant that apparently in applying Regulation No 120/67 all Member States have chosen as the decisive factor for the purpose of the calculation of the levy the time of removal from store in the case of goods stored in warehouses. This may certainly be regarded as a strong support for assuming that the Community legislature also took this point of view. Finally reference may also be made to Community legislation which was issued and which entered into force subsequently. First there is the Council Directive of 4 March 1969 (OJ, English Special Edition, 1969 (I), p. 82) ‘on the harmonization of provisions laid down by law, regulation or administrative action relating to customs warehousing procedure’ which entered into force on 1 October 1969. The customs warehouses to which it refers apparently correspond to the earlier German deferred levy warehouses. At least it can be said that they are treated as being economically the same because according to the German external trade law in force at the time, storage in deferred levy warehouses was possible without an import licence and because in fact clearance for release into free circulation only occurred on the removal from store. In that directive it is however provided, in the case of customs warehouses, that the goods concerned enter into free circulation when they are removed from store (Article 2) and that the rates of levy are to be determined according to the time of removal from store (Article 10). Further, because of the close connexion with the levy rules reference may be made to the concept of importation which forms the basis of Regulation (EEC) No 1373/70 of 10 July 1970 (OJ, English Special Edition, 1970 (II), p. 439), the so-called ‘licensing regulation’ which came into force on 1 January 1971. As you know the purpose of the licence rules is to make it possible to assess market trends; therefore it must be ensured that importation in this sense means the release of goods into free circulation. Seen in this way, that is, since licences are only necessary for goods which finally enter free circulation, it is relevant that Article 15 of the licensing regulation provides that the obligation to import must be complied with on the day on which the customs formalities are fulfilled. In my opinion these factors are at least illuminating. On the other hand it may be left open whether they can be of decisive importance, whether binding interpretations of the concept ‘day of importation’ may also be drawn from the abovementioned provisions in respect of matters which occurred before their entry into force or before they became binding since the considerations first set out above are sufficient for the purpose of defining this concept. It is therefore quite clear how the first question is to be answered.