CELEX: 61975CC0030
Language: en
Date: 1975-10-15 00:00:00
Title: Opinion of Mr Advocate General Reischl delivered on 15 October 1975. # SpA Unil-It. v Amministrazione delle Finanze delle Stato. # Reference for a preliminary ruling: Corte suprema di Cassazione - Italy. # Case 30-75.

OPINION OF MR ADVOCATE-GENERAL REISCHL
      DELIVERED ON 15 OCTOBER 1975 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The following points are important for an understanding of the reference for a preliminary ruling before us today.
      Under Article 9 (2) of the EEC Treaty, the provisions of Chapter 1, Section 1, and of Chapter 2 of Title I of Part II of the Treaty (that is to say, the provisions relating to the elimination of customs duties and to the elimination of quantitative restrictions between Member States) shall apply to ‘products originating in Member States and to products coming from third countries which are in free circulation in Member States’. Under Article 10 (2) the Commission shall ‘determine the methods of administrative cooperation to be adopted for the purpose of applying Article 9 (2)…’.
      This was first done by a decision of 4 december 1958‘relating to the use of a certificate for the movement of merchandise between Member States …’ (OJ No 33 of 31. 12. 1958) which was replaced with effect from 1 January 1961 by another Commission decision with the same subject-matter of 5 December 1960 (OJ No 4 of 20 January 1961). In the latter decision it was provided that goods shall benefit from the abovementioned provisions of the Treaty relating to the elimination of customs duties and quantitative restrictions ‘upon presentation [to the customs authorities of the import Member State] of a document in proof issued by the customs authorities of the exporting Member State…’. Article 2 of that decision further provides:
      
               ‘1.
            
            
               When the merchandise is transported directly from the exporting Member State to the importing Member State, the document in proof referred to in Article 1 above shall consist of a movement certificate form DD 1.
               In other cases, this document in proof shall consist of a movement certificate form DD 3.
            
         
               2.
            
            
               In enforcement of the provisions of paragraph (1) above, the following shall be deemed to be transported directly from the exporting Member State to the importing Member State:
            
         
               (a)
            
            
               Merchandise carried without passing through the territory of a non-member country;
            
         
               (b)
            
            
               Merchandise carried through the territory of one or more non-member countries, provided they are covered by a single freight document issued in a Member State when passing through these countries’.
            
         In addition, Article 3 provides that the movement certificate form DD 1 shall be issued by the customs authorities of the exporting Member State. The same applies under Article 5 for the movement certificate form DD 3. In addition, specimens of these certificates are annexed to the decision as examples.
      Also of importance in this connexion is the Commission Decision of 17 July 1962‘on special methods of administrative cooperation for applying the intra-Community levies set up by the regulations of the Council on the progressive establishment of a common organization of the market in certain sectors of agriculture’ (OJ No 76 of 24. 8. 1962, p. 2140). Article 1 of this provision states:
      ‘For the purpose of applying the system of intra-Community agricultural levies in the importing Member State, a goods movement certificate form DD 4 is hereby prescribed within the context of the methods of administrative cooperation set out in the first subparagraph of Article 10 (2) of the Treaty. This shall be issued at the request of the exporter and after being certified, where applicable, by an authority competent to certify certain statements therein, by the Customs authorities of the exporting Member State’.
      Article 2 of the decision provides:
      ‘The goods movement certificate form DD 4 may be used only if the goods to which it relates are carried directly from the exporting Member State into the importing Member State.’
      The definition of the concept ‘direct’ transport is the same as in Article 2 of the Decision of 5 December 1960.
      The second subparagraph of Article 3 (1) of the decision further provides:
      ‘Exceptionally the goods movement certificate form DD 4 may also be certified after the goods to which it relates have been exported, if due to an involuntary error or omission, it is not produced when they are exported’.
      The annex to this decision also contains a specimen of the movement certificate form DD 4 as an example.
      Finally, mention should also be made of Regulation No 13/64 of the Council of 5 February 1964‘on the progressive establishment of a common organization of the market for milk and milk products’ (Official OJ No 34 of 27. 2. 1964, p. 549). This regulation, Article 32 of which (as amended by Regulation No 82/64 of the Council) provided that it was applicable for intervention and trade as from 1 November 1964, did not introduce uniformity of prices. On the contrary, the Member States could fix standard prices for the most important milk products independently within certain limits. Therefore Regulation No 13/64 provided not only for levies on imports from third countries but also on imports in intra-Community trade although in such a way that Community preference was ensured.
      All these provisions are relevant in the action pending before the Corte Suprema di Cassazione which has given rise to the reference for a preliminary ruling to be decided by the Court.
      The appellant in the main action, or to be precise an undertaking which later merged with the appellant, imported cheese from the Federal Republic of Germany and the Netherlands into Italy. Importation was effected after 1 November 1964 although the cheese had been sent from the exporting countries in October 1964. Part of the cheese was accompanied by movement certificate DD 1 and part by movement certificate DD 3. Therefore, because no movement certificate DD 4 had been produced, the Italian Finance Department did not regard the fact of origin in other Member States as proved and so charged levies as though on imports from third countries.
      The appellant takes the view that the origin of the goods at the time of import was adequately proven by the certificates DD 1 and DD 3. For that reason it brought an action before the Tribunale of Milan against the State Finance Department for a partial refund of the levy which it had paid. The Tribunale of Milan decided in favour of the company on the ground that although the movement certificate DD 4 was introduced into Italy by the Decreto legge (Decree) of 29 October 1964, the latter had not become legally effective since it was not converted into substantive law. This occurred in the case of the Decreto legge of 13 December 1964, which was enacted in a Law of 19 February 1965. That measure did not however alter the legal situation retroactively; it was not yet binding at the time of the imports to be considered by the Court.
      On appeal by the State Finance Department the judgment of the Tribunale was overturned by a judgment of the Corte di Appelo (Court of Appeal) of Milan. That court took the view that the movement certificate DD 4 had been effectively introduced for all goods to which the levy system was applicable by the Commission Decision of 17 July 1962, which was directly applicable in Member States. In addition, from the judgment of the Court of Justice in Case 12/70 (Judgment of 22 October 1970, Craeynest and Vandewalle v Belgium [1970] ECR 905) the Italian court concluded that movement certificate DD 4 was irreplacable as proof of origin in intra-Community trade in goods subject to an organization of the market.
      The appellant then brought an appeal against this judgment on a point of law. In support of its case, it argues chiefly that Regulation No 13/64 did not establish any legal rules for establishing the origin of goods; however, the Commission Decision of 17 July 1962 cannot be regarded as being directly applicable. Until its legally effective conversion into national law, which only occurred later, the system in force until then should have been applied, that is to say, production of certificates DD 1 and DD 3 was sufficient proof of origin of the goods. The appellant further states that production of certificate DD 4 could on no account have been required for goods which were despatched before 1 November 1964 and which were accompanied by movement certificates DD 1 and DD 3, which were at that time the only valid ones. The date of importation, which fell after 1 November 1964, is not relevant. Finally, the appellant goes on to argue that production of movement certificate DD 3 proves that the goods accompanied by it did not come directly from another Member State. This constituted rather one of the ‘other cases’ within the meaning of Article 2 of the Commission Decision of 5 December 1960. For this however certificate DD 3 continued to be sufficient proof of origin since certificate DD 4 only replaced certificate DD 1.
      In view of these arguments the Corte Suprema di Cassazione stayed the proceedings by a decision of 22 November 1974 and referred the following three questions for a preliminary ruling pursuant to Article 177 of the EEC Treaty:
      
               (a)
            
            
               
                        1.
                     
                     
                        Do the provisions laid down, pursuant to Articles 9 and 10 of the Treaty, in the Decision of the EEC Commission of 17 July 1962 in conjunction with those laid down in Regulation No 13/64/EEC of the Council of 5 February 1964, mean that the direct application in each Member State of the levy system established by the second of the abovecited enactments in milk and milk products has, since the initial date prescribed in Article 32 (The Italian order mistakenly refers to Article 24) of the regulation and subsequent amendments, and regardless of internal rules promulgated on the subject by individual States, involved for entitlement to benefit from Community treatment a duty to use movement certificate DD 4 for which provision is made under the first enactment, as would accord with the finding of the Court of Justice in its judgment of 22 October 1970 in Case 12/70?
                     
                  
                        (a) 2.
                     
                     
                        Does this legislation also apply if the abovementioned date on which Regulation No 13/64 was to enter into force fell between the date when the goods were exported from one of the Member States and the date when they were imported into another Member State?
                     
                  
         
               (b)
            
            
               If the answer to the foregoing questions is in the affirmative, and in view of paragraphs (1) and (2) of Article 2 of the aforementioned Decision of 17 July 1962 and note II on the attached form referring to the last paragraph of the preamble, does the system established by the aforementioned Regulation No 13/64/EEC apply only in the case of direct transportation, which is the subject of movement certificate DD 1, referred to in the first subparagraph of paragraph (1) and paragraph (2) of Article 2 of the Decision of the EEC Commission of 5 December 1960, or also ‘in the other cases’ which are the subject of the different certificate, DD 3 for which provision is also made in the Decision of 5 December 1960 (in the second subparagraph of paragraph (1) of Article 2)?
            
         My opinion on these questions, on which the appellant in the main proceedings, the Italian Government and the Commission of the European Communities have submitted observations, is as follows:
      I — First question
      With regard to the problem of whether, from 1 November 1964 onwards and independently of the adoption of national legislative provisions, the use of movement certificate DD 4 was compulsory for importers wishing to benefit from the intra-Community levy, the Italian Government and the Commission have justifiably referred to the judgment in Case 12/70. Indeed the answer to that question may largely be deduced from that judgment.
      In that judgment it is clearly held that proof of origin of goods from the Community and of goods which are subject to a commom organization of the market under Regulation No 13/64 is governed by the Commission Decision of 17 July 1962. The judgment further expressly emphasizes the binding nature of that decision, making particular reference to Article 7 which provides for exceptions only in specified cases. Finally, it was held that only importers of goods from other Member States which are accompanied by movement certificate DD 4 can benefit from the intra-Community rules for such goods.
      Thus various passages of the grounds of that judgment show that, contrary to the view of the appellant, the use of certificate DD 4 is obligatory and is prescribed as an unconditional means of proof. Thus the Court of Justice states that the purpose of the Decision of 17 July 1962 was ‘to contribute to the elimination of all barriers to trade between Member States by harmonizing the formalities to which trade within the Community is subject’. It is further emphasized that the aim of the abovementioned decision was to ensure ‘that goods originating in the Member States should benefit from measures liberalizing intra-Community trade under exactly the same terms’. In addition, the Court of Justice emphasizes the requirement that the use of certificate DD 4 as a uniform means of proof should be absolutely identical in all the Member States, which could not be attained ‘if national administrations were able to employ other means of proof, apart from the proof of origin which is established in the form of the said certificate’.
      In view of this, the reference by the appellant in the main action to Article 2 of the Decision of 17 July 1962 and to the fact that the word ‘may’ is there used cannot lead to any other conclusion. From the complete text of that provision it is perfectly clear that there is no question of the grant of a discretionary power to the national administration but merely the obligatory restriction of the use of certificate DD 4 to cases of direct transport from the exporting State to the importing State.
      Nor can it be argued, as the appellant attempted to do, that the judgment in Case 12/70 relates solely to cases of fraudulent importation. In fact the findings to which I referred above are expressed in a general way and it is stated in this connexion only in the last paragraph of the grounds of the judgment that, in the absence of provisions to the contrary, these considerations also apply in cases where it is necessary to fix the amount of levies which have been evaded by smuggling.
      It is immediately clear that the first question has not yet been exhaustively dealt with. We must also examine whether the duty to submit certificate DD 4 applied as from 1 November 1964, that is to say, from the time of the application of the common organization of the market in milk and milk products and independently of the adoption of national legislation.
      The appellant contests this on the ground that Regulation No 13/64 contains no binding rules relating to the procedure for and supervision of proof of origin of goods. The Commission Decision of 17 July 1962 does not have such an effect. Rather it necessitated corresponding provisions under national legislation. However, at the time of the imports in question these provisions did not yet exist in Italy.
      In contrast to this, the Commission takes the view that on the one hand it is important that Regulation No 13/64 with its rules for trade was directly applicable as from 1 November 1964. On the other hand, there are also provisions in decisions which appear to render national legislative measures superfluous. The Commission believes that this must be accepted with regard to the Decision of 17 July 1962. It is sufficiently clear and exact and contains a definite obligation for the Member States without leaving them a margin of discretion; in the Annex there is even a specimen of certificate DD 4 which must be used.
      May I say immediately that with regard to this problem as well I believe that the view of the Commission is to be preferred.
      In the case-law with regard to decisions reference has already been made to direct effect within the Member States. I refer to the judgment in Case 38/69 (Judgment of 18 February 1970, Commission of the European Communities v Italian Republic, [1970] ECR 57), and for a still clearer statement, to the judgment in Case 9/70 (Judgment of 6 October 1970, Franz Grad v Finanzamt Traunstein, [1970] ECR 838). There is no compelling reason to assume that these rulings apply only to decisions involving obligations on Member States, if one may speak of the creation of individual rights, and that therefore different rules must be held to apply in the case of decisions involving obligations upon citizens of the common market or, as in the present case, where advantages under the organization of the market (intra-Community levies) are tied to conditions which are set out in greater detail in a decision.
      Since, for the reasons put forward by the Commission, the prerequisites stated in those judgments for the direct applicability of Community law are undoubtedly present in the case of the Decision of 17 July 1962, it must in fact be accepted that upon the entry into force of the commercial rules contained in Regulation No 13/64, that is to say, from 1 November 1964 onwards, the imposition of the intra-Community levy was dependent upon compliance with the provisions of the Commission decision.
      All in all it is clear that the first question can only be answered in accordance with the Commission's proposal.
      II — The second question
      In this connexion the Court must examine whether the rules contained in the Decision of 17 July 1962 also apply to cases where exportation occurred before 1 November 1964 whereas importation was effected after that date.
      As the Commission rightly emphasizes, it is important for the answer to this question that, from 1 November 1964 onwards, provision was made for the obligatory application of the commercial rules contained in Regulation No 13/64. From that date onwards customs duties and quantitative restrictions were eliminated and the application of Article 44 of the EEC Treaty was discontinued. In so far as price differences existed between the Member States intra-Community levies served to compensate for them.
      On the other hand, the application of the commercial rules contained in Regulation No 13/64 presupposes that the goods referred to have been found to correspond to the conditions contained in the regulation, in particular in Article 12 (4). They must have been harvested or produced in the exporting Member State, or the import formalities must have been complied with in respect of them, that is, they must have been admitted to free circulation on the market of the exporting country. It may also be said that it must be ascertained that such goods reflect the level of prices which results from the common organization of the market.
      If one examines the relevant movement certificates it is immediately clear that certificates DD 1 and DD 3 were inadequate for this purpose since they only served as proof of origin and for identification of the goods. In fact only movement certificate DD 4 can be considered as proof of compliance with the conditions of Regulation No 13/64, as it is the only certificate providing a text and explanations relating to the particular nature of the goods, the imposition of levies and the granting of refunds.
      One is thereby led to the conclusion that according to the scheme of Regulation No 13/64 reference must be made to the date of importation of the goods and that the imposition of the intra-Community levy is linked to the submission of certificate DD 4.
      In support of this view, that is, that it was necessary to impose levies as from 1 November 1964, reference may also be made, as was done by the Commission, to its Regulation No 138/64 (OJ 1964, p. 2604). It concerned goods which had been placed in a German bonded warehouse before 1 November 1964 and were finally imported only later. With regard to the obligation to use certificate DD 4 for imports after 1 November 1964, allusion may also be made to Regulation No 159/64 of the Commission (OJ 1964, p. 2728) and its provisions relating to the information to be recorded in certificate DD 4 after 31 October 1964.
      It is not possible to argue against the correctness of this view by referring to the fact that in the present case at the time when the goods were despatched the rules relating to certificate DD 4 were not yet in force and that it was therefore not possible to obtain certificate DD 4, which certainly in theory must be issued by the exporting State at the time of exportation.
      In this respect the Italian Government correctly points out that under the final paragraph of Article 32 of Regulation No 13/64 transitional rules could have been adopted. Since this was not done one may only conclude that it was not regarded as necessary, apparently in view of other existing rules. In the present connexion these can only be those contained in the second subparagraph of Article 3 (1) of the Decision of 17 July 1972, whereby, exceptionally, movement certificate DD 4 may also be issued after the export of the goods to which it relates. In spite of the emphasis on the words ‘error’ and ‘involuntary omission’ this provision must therefore be interpreted in the sense that those cases are also covered where the issue of the certificate was not yet possible at the time of exportation.
      In theory therefore the answer to the second question should be that it was necessary to submit a DD 4 certificate for the purpose of the application of intra-Community levies for goods which were dispatched from the exporting country before 1 November 1964 and arrived in the importing country only after that date.
      Whether other principles may apply in circumstances where the subsequent issue of the certificate is no longer possible is a question which was not put by the court making the reference but which arose as a result of the submissions of the appellant in the oral proceedings. I recall its observation that at the time of importation the Italian customs administration did not require submission of certificate DD 4 but only pointed out its necessity 17 months later, at a time when such certificates were no longer available from the authorities of the exporting States.
      If I may merely outline an attitude to this question, this would have to be as follows: clearly this may not occur in circumstances in which the granting of certificate DD 4 was never possible on account of the absence of the conditions set out in Regulation No 13/64. Rather, it only applies in cases in which, because of the passage of a long period of time, conclusive and objective reasons preclude the belated issue of certificate DD 4 by the authorities of the exporting State. In such a situation it is indeed conceivable that proof of the existence of the conditions required for the imposition of intra-Community levies may also be adduced by other means. Clearly it is intolerable that importers should suffer loss which could have been avoided if their imports had been handled promptly by the authorities of the importing State. Nevertheless, it should be emphasized that in each case strict principles must apply in examining such situations.
      Otherwise the system of intra-Community levies and its application as uniformly as possible over the whole Community would be seriously endangered.
      III — The third question
      There finally remains to be ascertained whether the rules contained in Regulation No 13/64 (imposition of intra-Community levies) were only applicable to cases of direct transport or also to other cases, that is, cases for which certificate DD 3 is provided under the Decision of 5 December 1960.
      In my opinion, in view of the abovementioned considerations and in the light of the wording of the Decision of 17 July 1962 the answer to this question presents no difficulties.
      Article 1 of that decision provides that movement certificate form DD 4 is introduced for the application of the rules regarding intra-Community levies in the importing Member State. From the preamble to that Decision it is clear that goods subject to the intra-Community levy system are excluded from the sphere of application of the Commission Decision of 5 December 1960 and that other methods of administrative cooperation are introduced for them. Moreover, Article 2 of the Decision of 17 July 1962 provides that movement certificate form DD 4 can only be used if the goods to which it relates are transported directly from the exporting Member State into the importing Member State; thus in this respect certificate DD 4 replaces certificate DD 1 introduced by the decision of 1960. It is thus abundantly clear that the proof of origin constituted by certificate DD 3, which is valid for indirect transport, has no place in the rules relating to intra-Community levies. There are obvious reasons for this. It is quite clear that certificate DD 3 is not appropriate for goods which should be subject to intra-Community levies; its issue is not linked to an examination such as that provided for goods which are subject to the levy. In other words, certificate DD 3 does not give the guarantee that the goods to which it relates comply with the conditions of Regulation No 13/64.
      IV — The questions referred by the Corte Suprema di Cassazione may therefore be answered as follows:
      
               (a)
            
            
               According to Regulation No 13/64, in conjunction with the Commission Decision of 17 July 1962, as from 1 November 1964 imports of goods from other Member States which were subject to Regulation No 13/64, apart from the exceptions set out in that decision and independently of the adoption of national provisions, could benefit from intra-Community treatment only if DD 4 certificates were submitted in respect of the goods.
               In principle this also applies in cases where the goods were dispatched from the exporting State before that date.
            
         
               (b)
            
            
               Intra-Community treatment was restricted to goods accompanied by DD 4 certificates and which were therefore transported directly from the exporting State to the importing State.
            
         (
            1
         )	Translated from the German.