Judgment of the Court of 28 June 1977. - Balkan-Import-Export GmbH v Hauptzollamt Berlin-Packhof. - Reference for a preliminary ruling: Finanzgericht Berlin - Germany. - Exemption from charges on grounds of natural justice. - Case 118-76.



European Court reports 1977 Page 01177

Greek special edition Page 00359

Portuguese special edition Page 00423

Spanish special edition Page 00323



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

COMMUNITY CHARGE - IMPOSITION - EXEMPTION - GROUNDS OF NATURAL JUSTICE - NATIONAL LAW - APPLICABILITY - STRICT LIMITS

Summary

THE DISTRIBUTION OF FUNCTIONS BETWEEN THE COMMUNITY AND THE MEMBER STATES MAY JUSTIFY THE APPLICATION , BY A NATIONAL AUTHORITY , OF A RULE OF NATURAL JUSTICE FOR WHICH PROVISION IS MADE UNDER ITS NATIONAL LEGISLATION IN CONNEXION WITH THE FORMALITIES APPLICABLE TO THE IMPOSITION OF A CHARGE INTRODUCED BY COMMUNITY LAW .

ON THE OTHER HAND , A NATIONAL AUTHORITY IS NOT ENTITLED TO APPLY THE PROVISIONS OF ITS NATIONAL LAW TO AN APPLICATION FOR EXEMPTION , ON GROUNDS OF NATURAL JUSTICE , FROM CHARGES DUE UNDER COMMUNITY LAW , WHERE TO DO SO WOULD ALTER THE EFFECT OF THE COMMUNITY RULES RELATING TO THE BASIS OF ASSESSMENT , THE MANNER OF IMPOSITION OR THE AMOUNT OF THE CHARGE IN QUESTION .

Parties

IN CASE 118/76

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

BALKAN-IMPORT-EXPORT GMBH , WHOSE REGISTERED OFFICE IS IN BERLIN ,

AND

HAUPTZOLLAMT BERLIN-PACKHOF ,

Subject of the case

ON THE QUESTION WHAT RULES OR PRINCIPLES OF LAW ARE APPLICABLE TO A DISCRETIONARY EXEMPTION ON GROUNDS OF NATURAL JUSTICE FROM MONETARY COMPENSATORY AMOUNTS IMPOSED ON THE IMPORTATION OF AGRICULTURAL PRODUCTS FROM A THIRD COUNTRY ,

Grounds

1 BY ORDER OF 23 NOVEMBER 1976 , RECEIVED AT THE COURT REGISTRY ON THE FOLLOWING 15 DECEMBER , THE FINANZGERICHT BERLIN REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS RELATING TO THE INTERPRETATION OF THE GENERAL SCHEME OF THE COMMUNITY RULES ON MONETARY COMPENSATORY AMOUNTS AND , IN PARTICULAR , OF REGULATION ( EEC ) NO 974/71 OF THE COUNCIL OF 12 MAY 1971 ON CERTAIN MEASURES OF CONJUNCTURAL POLICY TO BE TAKEN IN AGRICULTURE FOLLOWING THE TEMPORARY WIDENING OF THE MARGINS OF FLUCTUATION FOR THE CURRENCIES OF CERTAIN MEMBER STATES ( OJ , ENGLISH SPECIAL EDITION 1971 ( I ), P . 257 ), AS WELL AS OF THE IMPLEMENTING REGULATIONS ADOPTED BY THE COMMISSION .

THE QUESTIONS REFERRED ASK WHAT RULES OR PRINCIPLES OF LAW MAY BE APPLIED TO EXEMPTIONS ON GROUNDS OF NATURAL JUSTICE FROM PAYMENT OF MONETARY COMPENSATORY AMOUNTS LEVIED ON AGRICULTURAL PRODUCTS IMPORTED FROM THIRD COUNTRIES .

2 THE QUESTIONS REFERRED TO THE COURT AROSE IN THE CONTEXT OF AN ACTION BEFORE THE FINANZGERICHT CONCERNING THE LEVY OF COMPENSATORY AMOUNTS ON SHEEP ' S MILK CHEESE IMPORTED FROM BULGARIA , DURING THE COURSE OF WHICH THE FINANZGERICHT ASKED THE COURT , BY AN ORDER OF 19 JANUARY 1973 , TO GIVE A PRELIMINARY RULING ON THE INTERPRETATION AND VALIDITY OF CERTAIN PROVISIONS OF THE REGULATIONS TO WHICH REFERENCE WAS MADE .

IN ITS JUDGMENT OF 24 OCTOBER 1973 ( BALKAN-IMPORT-EXPORT GMBH V HAUPTZOLLAMT BERLIN-PACKHOF , CASE 5/73 ( 1973 ) II ECR 1091 ), THE COURT RULED THAT EXAMINATION OF THE QUESTIONS REFERRED HAD NOT REVEALED ANY ELEMENTS CAPABLE OF AFFECTING THE VALIDITY OF REGULATION NO 974/71 OF THE COUNCIL OR OF THE IMPLEMENTING REGULATIONS ADOPTED AT THE TIME BY THE COMMISSION .

AFTER THE COURT HAD GIVEN JUDGMENT THE PLAINTIFF IN THE MAIN ACTION APPLIED TO THE HAUPTZOLLAMT BERLIN-PACKHOF FOR EXEMPTION FROM THE MONETARY COMPENSATORY AMOUNTS WHICH IT WAS REQUIRED TO PAY ON THE GROUND THAT , IN THAT PARTICULAR CASE , PAYMENT OF THE AMOUNTS IN QUESTION WOULD LEAD TO A RESULT WHICH WAS CONTRARY TO THE OBJECTIVES OF THE COMMUNITY RULES AND WHICH SHOULD BE CORRECTED BY THE APPLICATION OF THE PRINCIPLES OF NATURAL JUSTICE ENSHRINED IN ARTICLE 131 ( 1 ) OF THE ABGABENORDNUNG ( GENERAL REGULATION ON TAXATION ).

WHEN THAT APPLICATION WAS REJECTED BY THE CUSTOMS AUTHORITIES THE PLAINTIFF BROUGHT AN ACTION BEFORE THE FINANZGERICHT BERLIN , WHICH HAS REFERRED FOUR QUESTIONS TO THE COURT FOR A PRELIMINARY RULING .

3 THE FIRST QUESTION ASKS WHETHER A NATIONAL CUSTOMS AUTHORITY IS ENTITLED AND , IF NECESSARY , OBLIGED ON GROUNDS OF NATURAL JUSTICE , TO DEAL WITH APPLICATIONS FOR EXEMPTION FROM CHARGES DUE TO THE COMMUNITY ( IN THIS INSTANCE , MONETARY COMPENSATORY AMOUNTS ) ON THE BASIS OF NATIONAL LAW ( IN THIS INSTANCE , ON THE BASIS OF ARTICLE 131 OF THE REICHSABGABENORDNUNG ).

4 THE SOLUTION TO THE QUESTION REFERRED IS RELATED TO THE DISTRIBUTION OF POWERS BETWEEN THE COMMUNITY AND THE MEMBER STATES AT THE PERIOD AS REGARDS THE INTRODUCTION AND COLLECTION OF THE CHARGE IN DISPUTE .

5 MONETARY COMPENSATORY AMOUNTS WERE INTRODUCED BY THE COMMUNITY FOR THE PURPOSE OF REGULATING THE COMMUNITY MARKET IN AGRICULTURAL PRODUCTS FOLLOWING ALTERATIONS IN THE EXCHANGE RATES OF THE CURRENCIES OF THE MEMBER STATES .

ALTHOUGH ALL QUESTIONS CONCERNING THE BASIS OF ASSESSMENT , THE MANNER OF IMPOSITION AND THE AMOUNT OF THE CHARGE IN DISPUTE WERE FIXED BY COMMUNITY LAW , THE RECOVERY OF THE CHARGE , TOGETHER WITH ALL THE FORMALITIES ATTACHING THERETO , WAS ENTRUSTED TO THE COMPETENT AUTHORITIES IN THE MEMBER STATES , AS THE COURT HAS HAD OCCASION TO POINT OUT IN OTHER CONTEXTS ( JUDGMENT OF 25 OCTOBER 1972 , CASE 96/71 , R AND V HAEGEMAN V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1972 ) II ECR 1005 ; JUGDMENT OF 4 APRIL 1974 , JOINED CASES 178 , 179 AND 180/73 , BELGIAN STATE AND GRAND DUCHY OF LUXEMBOURG V MERTENS AND OTHERS , ( 1974 ) I ECR 383 ; JUDGMENT OF 5 MAY 1977 , CASE 110/76 , PRETORE OF CENTO V A PERSON OR PERSONS UNKNOWN ).

ALTHOUGH THAT DISTRIBUTION OF FUNCTIONS BETWEEN THE COMMUNITY AND THE MEMBER STATES MAY JUSTIFY THE APPLICATION , BY A TAX AUTHORITY , OF A RULE OF NATURAL JUSTICE FOR WHICH PROVISION IS MADE UNDER ITS NATIONAL LEGISLATION IN CONNEXION WITH THE FORMALITIES APPLICABLE TO THE IMPOSITION OF A CHARGE INTRODUCED BY COMMUNITY LAW , SUCH A RULE MAY NOT BE APPLIED IN SO FAR AS ITS EFFECT WOULD BE TO MODIFY THE SCOPE OF THE PROVISIONS OF COMMUNITY LAW CONCERNING THE BASIS OF ASSESSMENT , THE MANNER OF IMPOSITION OR THE AMOUNT OF A CHARGE INTRODUCED BY THAT LAW .

THE RESULT IS , IN PARTICULAR , THAT A NATIONAL AUTHORITY CANNOT GRANT AN APPLICATION FOR EXEMPTION ON GROUNDS OF NATURAL JUSTICE IF THE REASONS FOR SUCH APPLICATION RELATE TO THE ECONOMIC JUSTIFICATION FOR THE CHARGE IN QUESTION .

6 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT A NATIONAL CUSTOMS AUTHORITY IS NOT ENTITLED TO APPLY THE PROVISIONS OF ITS NATIONAL LAW TO AN APPLICATION FOR EXEMPTION , ON GROUNDS OF NATURAL JUSTICE , FROM CHARGES DUE UNDER COMMUNITY LAW - IN THIS INSTANCE , MONETARY COMPENSATORY AMOUNTS - IN SO FAR AS TO APPLY NATIONAL LAW WOULD ALTER THE EFFECT OF THE COMMUNITY RULES RELATING TO THE BASIS OF ASSESSMENT , THE MANNER OF IMPOSITION OR THE AMOUNT OF THE CHARGE IN QUESTION .

7 THE SECOND AND THIRD QUESTIONS ASK WHETHER THERE IS ANY LEGAL BASIS UNDER COMMUNITY LAW FOR EXEMPTION FROM PAYMENT OF MONETARY COMPENSATORY AMOUNTS ON GROUNDS OF NATURAL JUSTICE AND , IF SUCH BASIS EXISTS , WHAT , IN RELATION TO THE CASE TO BE DECIDED HERE , WOULD BE THE LEGAL PRINCIPLE APPLICABLE , IF ANY .

8 IN ITS PRESENT STATE , COMMUNITY LAW CONTAINS NO PROVISION , SUCH AS THAT EXISTING IN GERMAN LEGISLATION , WHICH ENABLES EXEMPTION FROM CHARGES INTRODUCED BY COMMUNITY LAW TO BE GRANTED BY ADMINISTRATIVE ACTION .

A PROPOSAL TO THAT EFFECT WHICH WAS SUBMITTED BY THE COMMISSION TO THE COUNCIL ON 30 DECEMBER 1975 , THAT IS , AT A DATE SUBSEQUENT TO THE EVENTS WHICH GAVE RISE TO THE PRESENT CASE , HAS SO FAR NOT BEEN ACTED UPON BY THE COUNCIL .

9 AS REGARDS THE CASE UNDER CONSIDERATION , IT MUST , HOWEVER , BE OBSERVED THAT THE CRITICISMS OF THE PLAINTIFF IN THE MAIN ACTION CONCERNING THE ECONOMIC REPERCUSSIONS OF THE REGULATIONS ON WHICH THE CHARGE IN DISPUTE IS BASED HAVE ALREADY BEEN CONSIDERED BY THE COURT WITHIN THE CONTEXT OF CASE 5/73 .

IN ITS JUDGMENT OF 24 OCTOBER 1973 THE COURT REFERRED TO THE REASONS WHICH , HAVING REGARD TO THE NEED TO BALANCE OPPOSING INTERESTS , JUSTIFY THE INTRODUCTION OF THE MACHINERY FOR COMPENSATORY AMOUNTS ACCORDING TO THE SYSTEM ADOPTED BY THE COUNCIL AND SUBSEQUENTLY IMPLEMENTED BY THE COMMISSION .

10 THE REPLY TO BE GIVEN TO THE SECOND AND THIRD QUESTIONS MUST THEREFORE BE THAT THERE IS NO LEGAL BASIS UNDER COMMUNITY LAW FOR EXEMPTION FROM MONETARY COMPENSATORY AMOUNTS ON GROUNDS OF NATURAL JUSTICE .

11 IN THE LIGHT OF THE FOREGOING IT IS UNNECESSARY TO EXAMINE THE FOURTH QUESTION .

Decision on costs

COSTS

12 THE COSTS INCURRED BY THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE FINANZGERICHT BERLIN , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT

IN REPLY TO THE QUESTIONS REFERRED TO IT BY THE IIIRD SENATE OF THE FINANZGERICHT BERLIN BY ORDER OF 23 NOVEMBER 1976 , HEREBY RULES :

1 . A NATIONAL CUSTOMS AUTHORITY IS NOT ENTITLED TO APPLY THE PROVISIONS OF ITS NATIONAL LAW TO AN APPLICATION FOR EXEMPTION , ON GROUNDS OF NATURAL JUSTICE , FROM CHARGES DUE UNDER COMMUNITY LAW - IN THIS INSTANCE , MONETARY COMPENSATORY AMOUNTS - IN SO FAR AS TO APPLY NATIONAL LAW WOULD ALTER THE EFFECT OF THE COMMUNITY RULES RELATING TO THE BASIS OF ASSESSMENT , THE MANNER OF IMPOSITION OR THE AMOUNT OF THE CHARGE IN QUESTION .

2 . THERE IS NO LEGAL BASIS UNDER COMMUNITY LAW FOR EXEMPTION FROM MONETARY COMPENSATORY AMOUNTS ON GROUNDS OF NATURAL JUSTICE .