Opinion of Mr Advocate General Mischo delivered on 8 February 2001. - Criminal proceedings against Édouard Balguerie and Others and Société Balguerie and Others, liable in a civil capacity. - Reference for a preliminary ruling: Cour d'appel de Paris - France. - Regulation (EEC) No 4142/87 - Conditions under which certain goods are eligible on import for a favourable tariff arrangement by reason of their end-use - Regulations (EEC) Nos 1517/91, 1431/92 and 1421/93 - Suspension of autonomous Common Customs Tariff duties - Dates. - Case C-190/00.



European Court reports 2001 Page I-03437



Opinion of the Advocate-General

I - Facts and procedure

1. This case is referred by the Cour d'appel (Court of Appeal) de Paris (France) in the context of criminal proceedings against Mr Balguerie and others who are charged with the offence of undeclared importation of prohibited goods.

2. Between 12 December 1991 and 27 April 1994 the appellants in the main proceedings imported dates from the United States of America, delivered in boxes weighing 15 pounds (7.5 kg).

3. The goods were imported under the tariff heading [d]ates, fresh or dried, for packing for retail sale into immediate packings of a net content of 11 kg or less, and were thus eligible for suspension of customs duties and a reduced VAT rate of 5.5%.

4. Between 19 October 1994 and 11 August 1995, the French Customs Administration carried out an investigation into those imports and established that the dates should have been declared under the tariff heading of dates, fresh or dried, in immediate packings of a net content of 35 kg or less, imports of which are subject to customs duty at 12%.

5. The appellants in the main proceedings referred the matter to the Commission de conciliation et d'expertise douanière (Customs Arbitration and Advisory Commission), which in the opinion it issued considered that the dispute did not concern the improper use of a tariff heading, but the interpretation of the Community rules determining the packaging of goods for import or export.

6. At the material time the rules were set out in Commission Regulation (EEC) No 4142/87 of 9 December 1988 determining the conditions under which certain goods are eligible on import for a favourable tariff arrangement by reason of their end-use.

7. The matter was brought before the Tribunal de grande instance (Regional Court) de Melun (France) by direct summons, and Mr Balguerie and others were found guilty of the offence of undeclared importation of prohibited goods, and ordered jointly and severally to pay, in particular, the sum of FRF 288 563 by way of duties and taxes evaded. The court found that it was unnecessary for the appellants in the main proceedings to repackage the goods for retail sale in immediate packings of a net content of 11 kg or less. Furthermore, it found that, on the day of the investigation, the relevant records, required by Regulation No 4142/87, had not been provided for inspection.

8. The appellants lodged an appeal against that decision with the Cour d'appel de Paris, which asks whether Commission Regulation No 4142/87 of 9 December 1987, and the conditions imposed for its application in regard to imports of dates under the procedure for the suspension of customs duties by reason of the end-use of the goods, preclude such goods being imported in original packings with a content of 11 kg or less.

II - The Community rules

9. Article 3 of Regulation No 4142/87 provides:

1. The benefit of the tariff arrangement referred to in Article 1 shall be conditional upon the granting by the competent authorities of the Member State in which the goods are declared for entry into free circulation, of a written authorisation to the person importing those goods into free circulation or having them so imported.

2. Without prejudice to the provisions of the following articles, the granting of the authorisation provided for in paragraph 1 shall impose an obligation to:

(a) put the goods to the prescribed end-use;

(b) pay the amount of uncollected import duties if the goods are not put to the prescribed end-use;

(c) keep records such as to enable the competent authorities to carry out any checks which they consider necessary to ensure that the goods are put to the prescribed end-use, and to preserve such records for such period as is required under the relevant provisions in force;

(d) permit inspection of the records provided for in subparagraph (c); and

(e) submit to any other measure of control which the competent authorities may deem appropriate to check the actual use of the goods and provide any information required for that purpose.

3. The competent authorities may withhold the authorisation from persons unable to offer the safeguards considered necessary.

4. The granting of the authorisation may be subject to the provision of security fixed by the competent authorities.

10. Article 6(1) of Regulation No 4142/87 states that the amount of uncollected import duties shall be paid if the goods have not been put to the prescribed end-use. Article 6(2) provides that the waste and scrap which result, in particular, from the processing of the goods, together with the losses due to natural causes, shall be regarded as goods having been put to the end-use.

11. Certain categories of dates are granted a favourable tariff arrangement by reason of their end-use under Council Regulation (EEC) No 1517/91 of 31 May 1991 temporarily suspending the autonomous Common Customs Tariff duties on a number of agricultural products.

12. The regulation lists 24 categories of agricultural products. In respect of dates, it includes the following provisions:

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13. Footnote (a) is drafted as follows: Control for the use for this special purpose shall be carried out pursuant to the relevant Community provisions. Only the second of these tariff suspensions is in issue in this case.

14. By virtue of Article 1 of Regulation No 1517/91, this suspension was valid from 1 July 1991 to 30 June 1992. It was renewed, for the period from 1 July 1992 to 30 June 1993, by Regulation (EEC) No 1431/92 and, for the period from 1 July 1993 to 30 June 1994, by Regulation (EEC) No 1421/93.

III - Summary of observations submitted to the Court

15. Mr Balguerie and others state that, in order for an importer to benefit from temporary suspension, the fresh or dried dates must be intended to be packed for retail sale in direct packings having a net content of 11 kg or less.

16. It is not in dispute, nor can it be, that the dates in question have been prepared for retail sale in 7 kg boxes or in 1 kg plastic trays, following sorting and checking, which satisfies the requirements as to end-use.

17. In this respect they submit that even if the dates were imported in packings containing less than 11 kg, they were repackaged in order to satisfy the demands of their customers.

18. Since the goods have been repackaged, Regulation No 4142/87 has been complied with, and the products should therefore be granted temporary suspension of customs duty.

19. The French Government points, firstly, to the general Community rules and claims that, given that the threshold for distinguishing between loose and packaged goods has been set at 11 kg, it follows that when the dates are imported in packings containing less than 11 kg, they are already packaged for retail sale. They cannot, therefore, qualify for the tariff suspension intended for loose products. The process of repackaging in fact carried out is therefore irrelevant.

20. The Commission states that it is apparently not in dispute that the products in question were fresh or dried dates, and that they were packaged for retail sale in direct packings having a net content of 11 kg or less. It states that the question whether the contents prior to packaging already weigh 11 kg or less is not addressed by the wording of the tariff headings under which they have been declared.

21. Consequently, according to the Commission, the imported products are covered by the wording of the tariff headings under which they were declared.

22. It is not the purpose of the repackaging of dates to compromise the end-use for which they have been declared, and it may even be explained, in the Commission's view, by the requirements of retail selling.

23. Regulation No 4142/87 does not prohibit such handling, but is intended to ensure effective control of the end-use.

24. The Commission considers, lastly, that if the national court finds, on the basis of the circumstances of the case, that there has been manipulation or fraud or even action likely to compromise the grant of favourable tariff treatment by reason of the end-use of the dates, such circumstances should not lead simply to a finding that the dates were already put up in direct packings having a content of 11 kg or less. That fact alone is, in the Commission's view, irrelevant for the grant of the tariff preference.

IV - Assessment

25. The question asked by the Cour d'appel de Paris is whether Commission Regulation No 4142/87 of 9 December 1987, and the conditions imposed for its application in regard to imports of dates under the procedure for the suspension of customs duties by reason of the end-use of the goods, preclude such goods being imported in original packings with a content of 11 kg or less.

26. Let us therefore consider, first, whether Regulation No 4142/87 provides the answer to that question.

27. This regulation, the relevant provisions of which I have set out above, introduces control mechanisms intended to ensure that goods - of whatever type - which receive a favourable import arrangement by virtue of their end-use are in fact put to that use. These mechanisms include, amongst others, a written authorisation, the grant of which is subject to an obligation to keep records so as to enable the competent authorities to carry out the necessary checks.

28. It is, of course, for the national court to determine whether all of those conditions are satisfied in this case.

29. I do not see, however, any provision of the regulation which provides an answer to the question whether dates intended for packing for retail sale in direct packings with a content of 11 kg or less must be imported in packings of more than 11 kg in order to be eligible for suspension of the 12% duty set by the Common Customs Tariff.

30. The national court also asks whether the conditions imposed for the application of Regulation No 4142/87 are such as to provide an answer to the question asked.

31. Not having found any text setting out such conditions or implementing measures, I take the view that I must refer, as I invite the French Government to do, to the Council regulations establishing the suspension of duty for certain categories of dates under the Common Customs Tariff.

32. In doing so I find, firstly, that Regulation No 1517/91 and the successive regulations renewing this suspension do not refer to dates for retail sale in direct packings having a net content not exceeding 11 kg, but to those for packing for retail sale into packages not exceeding this weight.

33. Dates intended for sale in shops in their original packaging are therefore excluded from the tariff suspension, even if that packaging contains only 11 kg, or less.

34. Secondly, the text does not use the phrase dates for packaging or repackaging for retail sale, either. The situation arising in the main action, that is, a repackaging, is not, therefore, covered by the text of the Council regulation.

35. Conversely, however, the text does not state that the dates in question must be imported in packages weighing more than 11 kg.

36. May one, nevertheless, assume that the Council intended this to be the case?

37. The French Government, the Tribunal de grande instance de Melun and the Cour d'appel de Paris consider that it is this interpretation that should be upheld, since only loose dates or dates in large packages necessitate packaging, that is, require the importer in fact to carry out packaging before the dates can be sold by retail in packings not exceeding 11 kg.

38. I agree that it is highly likely that the Council started from the premiss that dates must be presented to customs in quantities greater than 11 kg, especially as it is in this context that the phrase for packing for retail sale is best understood.

39. Nevertheless, the Council omitted to include such a condition in the text.

40. It seems to me necessary in any event to consider, in addition to the wording of the suspension measure, its aim.

41. In this respect the Commission has drawn our attention to the first two recitals in the preamble to Regulation No 1517/91, and the succeeding regulations, which state as follows:

... production in the Community of the products specified in this regulation is currently inadequate or non-existent; ... producers cannot meet the needs of user industries in the Community;

... in certain cases it is in the interest of the Community to suspend the autonomous Common Customs Tariff.

42. The purpose of the suspension is, therefore, to safeguard the interests of user industries, and the successive Council regulations contain two provisions to this end.

43. Firstly, they suspend the Common Customs Tariff duty in favour of dates, fresh or dried, for the processing industry, other than for the production of alcohol, and, secondly, they suspend this duty, by means of the text in issue in this case, in favour of the packing industry.

44. The French Government told us, in this respect, that:

with regard to dates, the subject of this case, at the instigation of France, wishing to support the packing industry for fruits originating in third countries, the suspension arrangement was introduced in 1970 to meet the competitive challenge of pre-packed North African products imported into the Community with suspension of duty.

45. That seems plausible in the light of the wording of the recitals in the preambles to the Council regulations.

46. It seems to be clear, therefore, that, for the aim of the tariff suspension to be achieved, it is enough that the dates are in fact packaged before sale, even if this means repackaging.

47. It follows that, even if the intention of the Council as to the volume of packings in which dates must be presented to customs was otherwise, it is not appropriate to impose a condition which, as we have seen, does not appear in the wording of the provision in question, and which is not required by the aim of the measure.

48. To do otherwise would flout the requirements of legal certainty.

49. It should also be remembered that Regulation No 4142/87 determining the conditions under which certain goods are eligible on import for a favourable tariff arrangement by reason of their end-use establishes control mechanisms intended to ensure that only products which have in fact been packaged or repackaged can benefit from the tariff suspension. The conditions laid down by this regulation must obviously be complied with in their entirety.

V - Conclusion

50. I therefore propose that the Court answer the question posed by the Cour d'appel de Paris in the following terms:

Commission Regulation (EEC) No 4142/87 of 9 December 1987 determining the conditions under which certain goods are eligible on import for a favourable tariff arrangement by reason of their end-use, and Council Regulation (EEC) No 1421/93 of 7 June 1993 temporarily suspending the autonomous Common Customs Tariff duties on a number of agricultural products do not prevent dates from qualifying for the suspension of customs duty provided for by the regulation solely on the ground that they are imported in original packings having a content of 11 kg or less.