CELEX: 61997CC0247
Language: en
Date: 1998-06-25
Title: Opinion of Mr Advocate General Jacobs delivered on 25 June 1998. # Marcel Schoonbroodt, Marc Schoonbroodt and Transports A.M. Schoonbroodt SPRL v Belgian State. # Reference for a preliminary ruling: Cour de cassation - Belgium. # Article 177 of the EC Treaty - Jurisdiction of the Court - National legislation reproducing Community provisions - Relief from customs duties - Fuel on board motorised road vehicles - Definition of 'standard tanks'. # Case C-247/97.

Important legal notice

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61997C0247

Opinion of Mr Advocate General Jacobs delivered on 25 June 1998.  -  Marcel Schoonbroodt, Marc Schoonbroodt and Transports A.M. Schoonbroodt SPRL v Belgian State.  -  Reference for a preliminary ruling: Cour de cassation - Belgium.  -  Article 177 of the EC Treaty - Jurisdiction of the Court - National legislation reproducing Community provisions - Relief from customs duties - Fuel on board motorised road vehicles - Definition of 'standard tanks'.  -  Case C-247/97.  

European Court reports 1998 Page I-08095

Opinion of the Advocate-General

1 In the present case the Court is asked to interpret the scope of an exemption from customs duties in respect of motor fuel.  That exemption is conferred by Article 112 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, (1) as amended by Council Regulation (EEC) No 1315/88 of 3 May 1988, (2) (`the Customs Regulation' or simply `the Regulation').  The case comes by way of a request for a preliminary ruling from the Belgian Cour de Cassation (Court of Cassation). 2 Although the facts concern the imposition of national excise duties rather than customs duties, the Belgian national law provided that exemptions from excise duties on imports were to be granted only to the same extent and subject to the same conditions as exemptions from import duties. (3)  Since the Customs Regulation governed the position as regards import duties at the relevant time, it was applied to the present case. The facts 3 The appellants in the national proceedings are a Belgian company called Transport A.M. Schoonbroodt SPRL and its two managing directors (collectively `Schoonbroodt').  The company provides international road transport services, and specialises in the transport of goods at a controlled temperature using large semi-trailers fitted with refrigerating units.  Its vehicles travel throughout Europe, particularly to France, Spain and Italy, and, further afield, to Poland and Russia. 4 It appears that the manufacturer of Schoonbroodt's vehicles fitted two fuel tanks to the driving unit, one of which (a 100-litre tank) was used for the refrigerating unit.  However, since Schoonbroodt wished to increase the amount of fuel which its vehicles could carry at any one time, it arranged for the trailers to be fitted with additional 700-litre tanks.  Those additional tanks were fitted by dealers or coachbuilders.  They were equipped with an electric pump controlled by a switch on the trailer and could be used both to fuel the refrigerating unit and to fill the standard tanks on the driving unit, to which they were directly connected.  At the oral hearing Schoonbroodt stated that half its vehicles were purchased ready-made with the additional tanks already installed by the manufacturer and that the other half of its vehicles were fitted out or constructed at its request. 5 According to Schoonbroodt, the purpose of increasing the fuel range of its vehicles was fourfold:  (a) to avoid difficulties in obtaining fuel in countries where availability is uncertain and where the poor quality of refining makes it dangerous for vehicles to use local diesel fuel, particularly in the former eastern bloc countries;  (b) to avoid the need to obtain fuel in countries where it is prohibitively expensive (such as Switzerland, the Nordic countries and, until recently, Italy);  (c) to avoid the administrative difficulties of recovering VAT;  and (d) to use as few fuel supply points as possible in order to be able to negotiate the best prices with fuel companies, so as to reduce costs and thus improve the company's profitability. 6 As explained above, Belgian national law provided that exemptions from excise duties on imports were to be granted only to the same extent and subject to the same conditions as exemptions from import duties.  Under Article 112(1)(a) of the Customs Regulation motor fuel was exempted from import duty if it was contained in the `standard tanks' of motor vehicles or special containers as defined in Article 112(2)(c).  Resale, transfer, or storage of fuel admitted duty-free was prohibited under Article 115 of the Regulation. (4)  The Belgian authorities considered that the fuel supplied by the additional 700-litre tanks did not qualify for exemption from excise duty because those tanks did not, in their view, qualify as standard tanks within the meaning of the Customs Regulation. 7 Article 56 of the Belgian General Customs and Excise Law of 18 July 1977 provided that carriers and other persons responsible for or providing the carriage of goods imported by land must declare those goods at the first point or office of dispatch set up at frontier points, in towns and at other places as designated from time to time.  That law applied in relation to importation in general and in particular to the importation of goods subject to excise duty. 8 Article 220 of that same law made it a criminal offence for any carrier or driver to attempt, either on importation or on exportation, to avoid making the required declarations, thereby seeking to defraud the Treasury. 9 Pursuant to those provisions, the Belgian authorities brought proceedings against Schoonbroodt for evading special excise duty on 85 848 litres of diesel fuel purchased outside Belgium and brought into Belgium within the tanks of their vehicles.  According to the Belgian Government the fuel was purchased in Luxembourg. Schoonbroodt was accused of failing to make the required declaration either at the first office upon entry or at any other office where such declaration should be made.  The alleged offences relate to the period between 17 February 1992 and 24 December 1992. 10 In its judgment dated 17 May 1995, the Tribunal Correctionel de Verviers (Tribunal of Verviers) acquitted Schoonbroodt on the basis that it was not proved that the disputed tanks were not `standard tanks' within the meaning of the Regulation.  However, on 8 May 1996, the Cour d'Appel (Court of Appeal), Liège held that the disputed tanks did not fall within the definition of `standard tanks' under Article 112 of the Regulation.  It ordered Schoonbroodt to pay not only the excise duties but also a fine of BFR 4 403 440, amounting to ten times the excise duty payable, together with interest and costs.  It also ordered the confiscation of Schoonbroodt's driving units and trailers to the value of BFR 88 373 377 (the duration of that confiscation is not stated) and sentenced the two managing directors to suspended terms of imprisonment. 11 Schoonbroodt appealed to the Court of Cassation, contesting the ruling that its tanks were not `standard tanks' within the meaning of Article 112 of Regulation (EEC) No 918/83.  That court has requested a ruling on the following question: `Are tanks fixed to containers equipped with a refrigeration system and intended for long-distance road haulage to be regarded as "standard" tanks within the meaning of Article 112 of Regulation (EEC) No 918/83 setting up a Community system of reliefs from customs duty, as amended by Regulation (EEC) No 1315/88, where: (1) those tanks have been permanently fixed by one of the manufacturer's dealers or by a coachbuilder, with a permanent fitting enabling fuel to be used directly both for the purposes of propulsion and for the operation of the refrigeration systems;  and (2) the aim of that fitting is to provide the haulage unit - driving unit and container - with a sufficient fuel range to (a) avoid difficulties in obtaining fuel in countries where availability is uncertain and where the poor quality of refining makes such fuel dangerous for vehicles, (b) avoid the need to obtain fuel at sometimes prohibitive prices in countries where it is too expensive, (c) avoid the administrative difficulties involved in the need to recover value added tax in the countries where it has been charged, and, (d) use as few fuel supply points as possible in order to be able to negotiate the best prices with fuel companies?' 12 Written observations have been submitted by Schoonbroodt, the Belgian, Finnish and French Governments, and the Commission.  At the oral hearing, Schoonbroodt, the Belgian Government and the Commission were represented. The Community legislation 13 The second recital of the preamble to the Customs Regulation states that `in certain well-defined circumstances, where by virtue of the special conditions under which goods are imported the usual need to protect the economy is absent, [Common Customs Tariff duties are] not justified'. 14 Under Article 112 of the Regulation fuel is exempted from customs duty subject to certain specific conditions. That Article reads as follows: `1. Subject to the provisions of Article 113 to 115: (a) fuel contained in the standard tanks of: - private and commercial motor vehicles and motor cycles, - special containers, entering the customs territory of the Community; (b) ... shall be admitted free of import duties. 2. For the purposes of paragraph 1: (a) "commercial motor vehicle" means any motorised road vehicle (including tractors with or without trailers) which by its type of construction and its equipment is designed for and is capable of transporting, whether for payment or not: - more than nine persons including the driver, - goods, - and any road vehicle for a special purpose other than transport as such; (b) ... (c) "standard tanks" means: - the tanks permanently fixed by the manufacturer to all motor vehicles of the same type as the vehicle in question and whose permanent fitting enables fuel to be used directly, both for the purpose of propulsion and, where appropriate, for the operation, during transport, of refrigeration systems and other systems. ... - tanks permanently fixed by the manufacturer to all containers of the same type as the container in question and whose permanent fitting enables fuel to be used directly for the operation, during transport, of the refrigeration systems and other systems with which special containers are equipped; (d) "special container" means any container fitted with specially designed apparatus for refrigeration systems, oxygenation systems, thermal insulation systems, or other systems.' 15 Although the question relates to the Customs Regulation, it should be noted that at the time of the alleged offences (17 February 1992 to 24 December 1992) a Community directive on the subject was in force.  That directive standardised provisions concerning the duty-free admission of fuel contained in the fuel tanks of commercial motor vehicles travelling between Member States (Directive 68/297/EEC, (5) as amended by Directive 85/347/EEC: (6) `the Directive'). 16 The Directive was adopted under Articles 75 and 99 of the Treaty as part of the common transport policy (7) and `to harmonise conditions of competition between carriers in the various Member States'. (8)  Member States were required to standardise, in accordance with the Directive, `provisions regarding the duty-free admission of fuel contained in the standard fuel tanks of commercial motor vehicles travelling across common frontiers between Member States'. (9)  The definitions in the Directive of a `commercial motor vehicle' and `standard fuel tanks' (10) are similar to the definitions contained in the Customs Regulation.  The definition of standard fuel tanks in the Directive does not mention containers but, according to the Belgian Government, the national court erred in referring to containers since the tanks in question are affixed not to containers but to trailers, which constitute part of the vehicle.  If that is so then for the purpose of these proceedings there appears to be no material difference between those definitions. 17 The exemption from excise duties of fuel in motor vehicles moving between Member States is now regulated by Council Directive 92/12/EEC on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products, (11) Council Directive 92/81/EEC on the harmonisation of the structures of excise duties on mineral oils (12) and Council Directive 92/82/EEC on the approximation of the rates of excise duties on mineral oils. (13)  However, none of those directives is applicable to the present case since they were not in force in 1992 when the offences were allegedly committed. Admissibility 18 The Customs Regulation, which concerns exemptions from customs duties on goods imported into the Community, does not apply to the present case as a matter of Community law since the litigation concerns the imposition of excise duty.  The Regulation is relevant, as explained above, merely because the Belgian national law provided that exemptions from excise duties on imports were to be granted only to the same extent and subject to the same conditions as exemptions from import duties. 19 However, the Court has held that it has jurisdiction under Article 177 of the Treaty to interpret Community law provisions in situations where, as in the present case, the facts being considered by the national court are outside the scope of Community law but those provisions have been rendered applicable by domestic law. (14) 20 Moreover, it may well be that the relevant Community legislation in the present proceedings is the Directive, rather than the Regulation, since the Directive was in force at the material time and its provisions governed the duty-free admission of fuel in respect of commercial vehicles travelling between Member States.  As explained above the relevant definitions may well be for present purposes the same in the Regulation and the Directive. Thus the reference is in any event admissible on the basis that the national court may wish to apply the Directive. Observations submitted to the Court 21 I turn now to the arguments put before this Court. Those arguments were directed to the Regulation;  the Directive was mentioned only at the hearing by the Commission, which considered that it was unnecessary to examine the Directive.  Contrary to Schoonbroodt's view, the Belgian, Finnish and French Governments and the Commission all favour a restrictive interpretation of the definition of `standard tanks' in Article 112 of the Regulation. 22 It is useful to recall at this point that Article 112 requires the tanks to be fixed permanently by the manufacturer to all motor vehicles or containers of the same type.  In the case of motor vehicles the tanks must be permanently fitted so as to enable the fuel to be used directly, both for the purpose of propulsion and, where appropriate, for the operation, during transport, of refrigeration systems and other systems.  In the case of containers, the fuel must be used directly for the operation, during transport, of the refrigeration systems and other systems with which special containers are equipped. 23 In Schoonbroodt's view the aim of the Regulation is to prevent the dangers posed by the import of inflammable substances in makeshift tanks (petrol cans and other types of can), whilst at the same time relieving transporters of formalities concerning the contents of their fuel tanks. Schoonbroodt thus reasons that tanks should qualify as standard tanks so long as they do not pose that type of risk. 24 Schoonbroodt stresses that the additional tanks comply with the definition of standard tanks in the Regulation in that they are affixed permanently to the vehicles and they can supply both the motor and the refrigeration system.  As set out above, (15) it has explained the reasons for the addition of the extra tanks and those reasons are mentioned by the Court of Cassation in the question referred. 25 Schoonbroodt considers that the fact that some of the additional tanks were added after manufacture by coachbuilders charged with the final fitting out of the vehicles is not relevant because in practice the manufacturer himself does very little:  usually he merely constructs the chassis or `skeleton', the coachbuilder being left to complete the rest of the work with a view to the vehicle's final destination.  Schoonbroodt explains that the installation of large capacity tanks features amongst the options offered in all manufacturers' catalogues and that such tanks are used very frequently by long distance transporters.  It argues that it would be contrary to the principles of free competition and free movement of goods to disallow the exemption of fuel contained in standard tanks simply because the tanks in question were not installed by the manufacturer if the coachbuilder who installed them did so safely and just as competently.  In Schoonbroodt's view account should be taken of the changing practice in vehicle manufacture, namely that nowadays vehicles manufactured according to customer specifications are necessarily not all identical. The judgment under appeal does not cast doubt on the factual circumstances described by Schoonbroodt but considers that they are not sufficient to bring the tanks within the definition of standard tanks in the Regulation. 26 The Belgian Government's response to Schoonbroodt's argument that changing practice in vehicle manufacture required a broader interpretation of the term `manufacturer' was that, even if that were so, that was a matter for the Community legislature and not for the Court. 27 The Belgian Government considers that the meaning of the word constructeur and its counterpart in other language versions (`manufacturer' in English, fabrikant in Dutch and Hersteller in German) is very clear and cannot include dealers or coachbuilders.  It argues moreover that the requirement in Article 112 of the Regulation that the tanks be affixed to all vehicles of the same type confirms that the reference to the manufacturer in that article must be construed strictly because it is only the manufacturer who can ensure that a particular item is affixed to all vehicles of the same type. 28 Referring to the case of Ethicon, (16) the Belgian Government reasons that since the provision constitutes an exemption from customs duty it must be interpreted according to objective criteria derived from its wording. It refers to the general rule that derogations must be construed strictly and to the fact that the second recital of the preamble to the Regulation states that it is only `in certain well-defined circumstances' that taxation is not justified. (17)  In its view a strict interpretation is necessary in order to ensure equality of treatment amongst transporters.  It accordingly rejects as irrelevant the reasons put forward by Schoonbroodt by way of explanation of the reasons for its additional tanks. (18) 29 In the view of the Finnish Government the tanks in question clearly do not fall within the definition of standard tanks because standard tanks must supply only the refrigeration system (or other system with which the container is equipped) and not the motor for propulsion of the vehicle, whereas in the present case they can be used for both.  (That view, however, is based on the assumption that the tanks in question are affixed to containers, whereas, as mentioned earlier, the Belgian Government maintains that the national court erred in referring to containers since the tanks are in fact affixed to the vehicles.) 30 Like the Belgian Government, the Finnish Government also argues that the second recital of the preamble to the Regulation, which refers to the granting of exemptions in `certain well-defined circumstances', indicates that the exemption should be interpreted restrictively.  In its view the tanks should be installed as a matter of practice by the manufacturer or at least proposed generally by the manufacturer as an option, and tanks affixed by special request or after manufacture cannot be regarded as standard tanks. 31 The French Government considers that the tanks in question do not qualify as `standard tanks' mainly because they were not affixed by the manufacturer.  It believes that there is a clear distinction between a manufacturer and a dealer and that had it been intended to include dealers they would have been mentioned expressly. 32 In the view of the Commission, the starting point is the judgment of the Court in Olasagasti and Others v Amministrazione delle Finanze dello Stato, (19) in which, referring to the case of Ethicon, (20) the Court stated that `provisions granting suspension of customs duties are to be interpreted strictly according to their terms and may not therefore be applied, contrary to their wording, to products which they do not mention'. 33 The Commission recognises that in several cases the Court has adopted a liberal interpretation of the scope of an exemption from customs duty in respect of scientific instruments. (21)  However, it argues that those cases can be distinguished because there was no precise definition of the term `scientific instrument' and the preamble to the regulation in issue in those cases referred to the need to exempt scientific materials `by all possible means'. 34 The Commission considers that in order to qualify as `standard tanks' within the meaning of the Customs Regulation, fuel tanks must fulfil three conditions: first, they must be fixed by the manufacturer;  secondly, they must be fixed on all containers of the same type;  and thirdly they must allow the direct use of the fuel only for the refrigeration system of the containers and other special use systems. 35 The Commission argues that none of those three conditions is fulfilled for the following reasons:  the additional tanks in question were affixed by dealers or coachbuilders, not by the manufacturer;  the fact that the addition was not made by the manufacturer suggests that such additional tanks were not fitted to every container of the same type, and indeed Schoonbroodt has itself stated that the additional tanks were an option;  and the tanks did not supply only the refrigeration system but were used also for the propulsion of the vehicles. 36 The first two conditions apply in relation to both tanks fixed to motor vehicles and tanks fixed to containers. However, as the Commission recognised at the hearing, its argument concerning the supply of fuel for the propulsion of the vehicles rests on the assumption that the tanks were affixed to containers rather than vehicles, which the Belgian Government maintains was not the case. Nevertheless, the Commission argued that the third limb of the definition of standard tanks would not be fulfilled if, as was possibly the case, the fuel in the additional tanks could not be used directly. Assessment 37 In view of the possible relevance of the Directive to the facts of the present case, I shall refer briefly to that Directive.  Since, however, the Court of Cassation has posed its question of interpretation in terms of the Regulation and since all observations have been submitted on that basis, I shall consider first the interpretation of the Regulation. 38 In my view, the starting point in interpreting the Regulation is the principle, to which the Commission and the Belgian Government refer, that `the descriptions of goods on which customs duties have been suspended must be interpreted according to objective criteria derived from their wording'. (22)  That principle is based on the need for legal certainty and the difficulties faced by national customs administrations. (23)  Thus Schoonbroodt's reasons for using the additional tanks which are listed in the question referred are irrelevant to the question whether those tanks fall within the definition of a standard tank within the meaning of the Regulation. 39 As the Commission has observed, the wording of the definition is very clear:  it requires, inter alia, that in order to qualify as `standard tanks' within the meaning of the Regulation, fuel tanks must be affixed by the manufacturer and must be affixed on all vehicles of the same type.  Contrary to those requirements, at least some of the fuel tanks at issue in the present case were affixed by dealers or coachbuilders, not by the manufacturer, and Schoonbroodt itself describes the additional tanks as an option. 40 It is true that it is important to have regard to the requirement of legal certainty in the interests of the taxpayer.  The Court has consistently held that the principle of legal certainty is a fundamental principle of Community law which requires that rules imposing charges on the taxpayer must be clear and precise so that he may know without any ambiguity his rights and obligations and may take steps accordingly.  It follows that ambiguous measures imposing charges should be interpreted in favour of the taxpayer:  see, for example, Administration des Douanes v Gondrand Frères. (24)  However, I do not consider that there is any such ambiguity in the present case. 41 It might be argued that the term `manufacturer' should be interpreted widely to take into account the practice, which according to Schoonbroodt is widespread, whereby parts of the manufacturing process are carried out by dealers or coachbuilders.  The Court will occasionally have regard to technical developments in interpreting the Common Customs Tariff:  in Chem-Tec v Hauptzollamt Koblenz, (25) for example, the Court held that the term `packages' in one of the subheadings had to be interpreted in the light of the particularly swift pace of technical development in the case of packages.  On the other hand, in Analog Devices the Court held that, although the technical developments resulting in more widespread use of integrated circuits justified the drawing up of a new customs classification, it was for the Community institutions to do so, failing which the interpretation of the Common Customs Tariff could not be adapted to changing processes. (26) 42 However, to my mind the meaning of the term `manufacturer' is in itself clear.  Moreover, the Regulation provides for exemptions only in `well-defined circumstances' and the Court stated in Ethicon that descriptions of goods on which customs duties have been suspended `may not be applied contrary to their wording to other goods even if their properties and application are no different from those covered by the suspension'.  It follows in my view that the fact that in practice dealers or coachbuilders now carry out part of the manufacturer's work, with the same degree of competence and the same result, cannot be taken into account unless, perhaps, they act as the manufacturer's agent in the manufacturing process. 43 In any event, even if one were to concede that there should be some leeway in interpreting the term `manufacturer', it appears clear that once an additional tank is listed as an option, which Schoonbroodt admits to be the case here, it is necessarily not affixed to all vehicles of the same type.  It seems to me that the definition of `standard tanks' in Article 112 of the Regulation is thus sufficiently clear and that there is no breach of the principle of legal certainty. 44 I accordingly conclude that the term `standard tanks' in Article 112 of the Customs Regulation is to be interpreted as not including additional tanks fitted by way of an option to motor vehicles or containers. 45 I turn now to the definition of `standard fuel tanks' in the Directive.  As explained earlier, that definition appears to be identical to the definition in the Regulation in so far as it may be relevant to the present case.  It might be argued that different considerations should apply when interpreting a Directive concerning exemption from excise duty in the context of the internal market, as opposed to a Regulation concerning exemption from customs duty in relation to imports into the Community from third countries.  In the present case, however, having regard to the clear wording of the Directive, I see no reason for interpreting the exemption in the Directive more widely than that in the Regulation. Proportionality of the penalties 46 I turn finally to consider Schoonbroodt's request that the Court consider the question whether the sanctions imposed by the Belgian State breach the principle of proportionality.  Schoonbroodt maintains that the penalties imposed are disproportionate since the fine which it was required to pay, in addition to the suspended prison sentences, is ten times the tax in question and the value of its property which was confiscated by the authorities amounts to 200 times the value of that tax. 47 The question of proportionality of the sanctions imposed has not been referred by the Court of Cassation and indeed Schoonbroodt admits that it did not in fact raise that argument in its mémoire before that court but merely in its note de plaidoirie.  Nevertheless, Schoonbroodt maintains that under Belgian law the Court of Cassation is competent to raise of its own motion a point concerning the illegality of an act of the public authorities and that it should have done so. 48 This Court will sometimes address issues of Community law not raised by the national court if its ruling on the point will help to decide the question put by the referring court.  In the present case, however, the question of the proportionality of the sanctions imposed by the Belgian State is an ancillary question and the view of this Court as to whether or not the sanctions are objectionable under Community law will not help to decide the question referred:  namely whether the fuel tanks in issue fall within the exemption from import duties specified in the Regulation. 49 Nevertheless, although to give a ruling on the point would be outside the scope of the present reference, it may be observed that the penalties might be objectionable if they were heavier than those imposed for failure to pay excise duty in respect of fuel taxed in a wholly domestic situation.  Even if some difference in the treatment of offences committed in relation to imports might be justified by virtue of the different circumstances surrounding imports (perhaps a different tax point or a different degree of difficulty of enforcement), that difference must not be disproportionate to the degree of dissimilarity between cross-border and wholly internal situations. (27)  Moreover, even in the absence of any discrimination, if the penalties imposed for evading excise tax were so excessive as to impede the free movement of goods or services (for example, as here, by the confiscation of vehicles) to a disproportionate extent, those penalties might in my view constitute a breach of Article 30 or Article 59 of the Treaty. (28)  If the case fell directly within the scope of Community law, then a penalty which involved the confiscation of vehicles might also raise an issue under Community law of respect for fundamental rights, including the right to property and the right to carry on a trade or profession.  An interference with fundamental rights can under certain conditions be justified, but in applying the principle of proportionality the national court would require a more compelling justification where there is an interference with such rights. Conclusion 50 For the reasons given above, I am of the opinion that the questions referred by the Court of Cassation should be answered as follows: (1) The term `standard tanks' in Article 112 of Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty, as amended by Council Regulation (EEC) No 1315/88 of 3 May 1988, is to be interpreted as not including additional tanks fitted by way of an option to motor vehicles or containers. (2) The purpose of the addition of the extra fuel tanks is irrelevant to the question whether they constitute `standard tanks' within the meaning of that Regulation. (1) - OJ 1983 L 105, p. 1. (2) - Council Regulation (EEC) No 1315/88 of 3 May 1988 amending Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and Regulation No 918/83 setting up a Community system of reliefs from customs duty, OJ 1988 L 123, p. 2.  The Customs Regulation has also been amended on other occasions but those amendments are not relevant to the present case. (3) - Articles 1(4) and 2 of the Ministerial Decree of 17 February 1960 concerning excise duties upon importation, Moniteur Belge of 18 February 1960, p. 1041. (4) - See paragraph 14 below. (5) - Council Directive 68/297/EEC of 19 July 1968 on the standardisation of provisions regarding the duty-free admission of fuel contained in the fuel tanks of commercial motor vehicles, OJ, English Special Edition 1968 (II), p. 313. (6) - Council Directive 85/347/EEC of 8 July 1985, OJ 1985 L 183, p. 22. (7) - First recital of the preamble to the Directive. (8) - Third recital. (9) - Article 1 of the Directive. (10) - Article 2 of the Directive. (11) - OJ 1992 L 76, p. 1, as amended by Council Directive 92/108 of 14 December 1992, OJ 1992 L 390, p. 124, by Council Directive 94/74/EC of 22 December 1994, OJ 1994 L 365, p. 46 and by Council Directive 96/99 of 30 December 1996, OJ 1997 L 8, p. 12. (12) - OJ 1992 L 316, p. 12, as amended by Directive 92/108 and Directive 94/74, cited in note 11.  See also Council Decisions taken pursuant to Directive 92/81 authorising the application to certain mineral oils of reductions in or exemptions from excise duty:  Council Decision 97/425, OJ 1997 L 182, p. 22 and Council Decision 98/275, OJ 1998 L 126, p. 31. (13) - OJ 1992 L 316, p. 19, as amended by Directive 94/74, cited in note 11. (14) - See Case C-28/95 Leur-Bloem v Inspecteur der Belastingdienst/Ondernemingen Amsterdam 2 [1997] ECR I-4161, paragraphs 27 to 34 of the judgment, Case C-130/95 Giloy v Hauptzollamt Frankfurt am Main-Ost [1997] ECR I-4291, paragraphs 23 to 28 of the judgment, and Case C-231/89 Gmurzynska-Bscher [1990] ECR I-4003. (15) - At paragraph 5. (16) - Case 58/85 Ethicon v Hauptzollamt Itzehoe [1986] ECR 1131. (17) - See paragraph 13 above. (18) - Set out at paragraph 5 above. (19) - Joined Cases C-47/95 to C-50/95, C-60/95, C-81/95, C-92/95 and C-148/95 [1996] ECR I-6579. (20) - Cited in note 16. (21) - Case 300/82 Gesamthochschule Essen v Hauptzollamt Düsseldorf [1983] ECR 3643, Case 45/83 Ludwig-Maximilians-Universität München v Hauptzollamt München-West [1984] ECR 267, Case 234/83 Gesamthochschule Duisburg v Hauptzollamt München-Mitte [1985] ECR 327, and Case 13/84 Control Data v Commission [1987] ECR 275. (22) - Ethicon, cited in note 16. (23) - See paragraph 12 of the judgment. (24) - Case 169/80 [1981] ECR 1931, paragraphs 17 and 18 of the judgment.  See also Joined Cases 92/87 and 93/87 Commission v France and United Kingdom [1989] ECR 405, paragraph 22, and Case C-338/95 Wiener, judgment of 20 November 1997, paragraph 19. (25) - Case 278/80 [1982] ECR 439, paragraph 14 of the judgment. (26) - Case 122/80 Analog Devices v Hauptzollamt München-Mitte and Haupzollamt München-West [1981] ECR 2781, paragraph 12 of the judgment.  See also Case 234/87 Casio Computer v Oberfinanzdirektion München [1989] ECR 63, paragraph 12. (27) - In relation to the VAT regime see Case 299/86 Drexl [1988] ECR 1213, Case C-312/91 Metalsa [1993] ECR I-3751, and Case C-276/91 Commission v France [1993] ECR I-4413. (28) - As to the proportionality of penalties applied by Member States in relation to customs offences and in exercise of their powers in the field of value added tax, see respectively Case C-210/91 Commission v Greece [1992] ECR I-6735 and Joined Cases C-286/94, C-340/95, C-401/95 and C-47/96 Molenheide and Others [1997] ECR I-7281.  In relation to the proportionality of penalties in respect of false declarations of the origin of goods, see Case 41/76 Donckerwolcke v Procureur de la République [1976] ECR 1921, Case 52/77 Cayrol v Rivoira [1977] ECR 2261 and Case 179/78 Procureur de la République v Rivoira [1979] ECR 1147.  See also Case C-367/89 Richardt and `Les Accessoires Scientifiques' [1991] ECR I-4621 in relation to penalties for breach of a measure restricting the transit of goods adopted pursuant to Article 36 of the Treaty.