CELEX: 61971CC0035
Language: en
Date: 1971-11-30 00:00:00
Title: Opinion of Mr Advocate General Roemer delivered on 30 November 1971. # Schleswig-Holsteinische landwirtschaftliche Hauptgenossenschaft eGmbH v Hauptzollamt Itzehoe. # Reference for a preliminary ruling: Finanzgericht Hamburg - Germany. # Day of importation. # Case 35-71.

OPINION OF MR ADVOCATE-GENERAL ROEMER
      DELIVERED ON 30 NOVEMBER 1971 (
            1
         )
      
         Mr President,
      
         Members of the Court,
      The Finanzgericht Hamburg has referred to us some questions relating to the interpretation of Regulation No 120/67 of the Council of 13 June 1967 (OJ, English Special Edition, 1967, p. 33) on the common organization of the market in cereals. The facts of the case, which call for an answer to these questions, are as follows.
      During 1968 the plaintiff in the main action imported quantities of barley and oats into the Federal Republic of Germany. This was carried out under import licences issued under Article 12 of Regulation No 120/67 and which were valid in the case of barley until 31 August and in the case of oats until 30 September 1968. In the case of the oats, the levy was fixed in advance in the licence (as was later expressly provided in Regulation No 1253/70 of the Council of 29 June 1970 (OJ, English Special Edition, 1970 (II), p. 405)). The goods were given customs clearance by the Customs Office and subsequently brought to the deferred duty warehouse (‘Abschöpfungsaufschublager’) which the plaintiff maintains with its silos in Husum under a permit from the Hauptzollamt (Principal Customs Office) Husum of 25 and 20 January 1967.
      It must be noted in this respect that according to the German customs law in force at the rime (Paragraphs 42 to 46 of the Customs Law) that under Paragraph 2 of the Abschöpfungserhebungsgesetzes (the Law on Imposition of Levies) on 25 July 1962 generally also applied to levies, the distinction was made between public and private bonded warehouses on the one hand and private deferred customs duty stores on the other. Goods which were placed in bonded warehouses and had not yet been cleared for free circulation, remained bonded goods. Goods which were placed in deferred duty stores had been cleared for free circulation save only that in the case of customs duty the payment had been deferred and in the case of levies these had not yet been fixed. Therefore the latter goods remained under customs supervision (not under bond) and there existed certain book-keeping and notification obligations. The goods could be re-exported with remittance of the customs duty or levy due.
      With regard to the goods stored by the plaintiff, on 1 August 1968 as regards barley and on 9 August and 30 August as regards oats, the plaintiff notified the Customs Office of their removal from store. The Customs Office fixed the levies on the basis of these dates. In the case of the barley, this was the levy applicable on the day; in the case of the oats it was the levy fixed in advance in the import licence. Paragraph 4 of the Law on Imposition of Levies was applicable and at the time provided as follows:
      
               “1.
            
            
               The amount of levy due shall be calculated according to the rate of levy applicable on the day of importation.
            
         
               2.
            
            
               Paragraph 1 shall not be applicable if the rate of levy applicable to the calculation of the amount of levy is fixed in the import licence. In this case the amount of levy due shall be calculated according to the rate of levy fixed in the import licence for the month of import in question …
            
         
               3.
            
            
               The day of importation (Paragraph 1) and also the day which is material for the fixing of the month of importation (Paragraph 2) shall be taken to be the day which, for the first time, an application for clearance of the goods through customs for release into free circulation or for the admission of the goods to a particular system of levies is made or becomes effective …
            
         
               4.
            
            
               If goods are removed from a deferred levy warehouse then the rate of levy applicable on the day of the removal from store shall be applied to these goods. If the rate of levy is fixed in the import licence (Paragraph 2) then the goods removed from store will be treated for the purposes of the application of this rate of levy as though they had been imported in the month in which they are removed from store; if no rate of levy is fixed for the month in which the goods are removed from store then the rate of levy applicable on the day of the removal from store shall be applied…”
            
         In the course of an audit carried out in July 1969 it was, however, discovered that the removal from the store notified to the customs authorities had not been fully carried out at the times stated but, in the case of the barley had continued from 1 until 19 August 1968 and, in the case of the oats, from 9 August until 12 November 1968 and that therefore it had in part been carried out after the expiry of the validity of the import licence. The Customs Office takes the view that the date of the actual removal from store, that is to say, what matters is the physical removal and therefore, in corrective notice of assessment it called for payment of the levy at the rate of the levy applicable on the day of the actual removal from store. It also demanded payment of levy at the same rate in respect of the consignments of oats which had been removed from store after the expiry of the validity of the import licence.
      The party liable to pay the levies, the Schleswig-Holsteinische landwirtschaftliche Hauptgenossenschaft, regards this as wrong. It admits that under Paragraph 4 of the German Abschöpfungserhebungsgesetz the removal from store is the relevant date for the fixing of the levy; however it takes the view mat since a physical removal from store is not always possible at the time of the notification of removal on practical grounds it cannot be demanded. Rather it is sufficient that the removal from store should be evident from the books.
      Moreover it is not possible for the subsequent imposition of the levy in “part to fix periods in respect of which no valid import permit existed”. Therefore the Hauptgenossenschaft objected to the corrective notice and when this was dismissed, brought the matter before the Finanzgericht Hamburg.
      Recognizing that a Member State is not permitted to adopt its own provisions which affect the scope of the organization of the market in agriculture and since Regulation No 120/67 of the Council does not define how “the day of importation” and “effecting an import” in Article 15 of that regulation are to be understood, the court stayed the proceedings by an order of 28 May 1971 and referred the following questions for a preliminary ruling:
      
               I —
            
            
               
                        1.
                     
                     
                        Must Article 15 (1) of Regulation No 120/67/EEC of 13 June 1967 be interpreted as meaning that when goods are stored in deferred levy warehouses the date of the removal of the goods from store is to be regarded as the day of importation so that the rate of levy applicable on the date of the removal must be applied?
                     
                  
                        2.
                     
                     
                        If Question I — 1. is answered in the negative: how is the term “importation” in Article 15 (1) of Regulation No 120/67 to be interpreted? Does this mean the bringing of goods into the customs territory or is it based on the application for clearance of the goods for release into free circulation?
                     
                  
         
               II —
            
            
               
                        1.
                     
                     
                        Must Article 15 (2) of Regulation No 120/67 be understood to mean that if goods are stored in deferred levy warehouses the importation must be regarded for the purposes of this provision as effected on the date of removal from store?
                     
                  
                        2.
                     
                     
                        If Question II — 1. is answered in the negative: what is the decisive date for the imposition of the levy under Article 15 (2) of Regulation No 120/67 if goods are stored in deferred levy warehouses?
                     
                  
                        3.
                     
                     
                        If Question II — 1. is answered in the affirmative: what rates of levy are applicable if the removal of the goods from the deferred levy warehouse does not take place until after the expiry of the period of validity of the import licence?'
                     
                  
         I shall now give my opinion on these questions in connexion with which the plaintiff in the main action, the Government of the Federal Republic of Germany and the Commission of the European Communities have submitted their written and oral observations.
      
               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.
            
         
               2. 
            
            
               In its second question the Finanzgericht wishes to know whether, where goods are stored in deferred levy warehouses, the importation must be regarded as occurring on the day of the removal from store for the purposes of Article 15 (2) of Regulation No 120/67 (that is where the levy is fixed in advance).
               All the parties are in agreement as to the answer to this question as well in the sense that the day of the removal from store must be decisive. Confirmation that this view is correct may in fact be found from considerations which are to some extent identical with those put forward in connexion with the first question.
               In addition the following should be borne in mind. When the levy is fixed in advance it is important that the importation in question should occur within the time provided. Accordingly provision is made for the lodging of deposit which is forfeited in the event of the licence not being used and this deposit is substantially higher where the levy is fixed in advance than in respect of other imports. However this purpose can only be achieved when the goods are released into free circulation, when all import formalities are complied with, that is the levy is finally fixed when the clearance into free circulation occurs. If on the contrary it were held to be sufficient that the condition making it possible to avoid forfeiture of the deposit may be fulfilled at an earlier time, for example when the goods are put into a deferred levy warehouse, then in certain circumstances this would lead to the goods in question never coming on to the market, since in such transactions involving the use of warehouses, as we have seen, re-exportation is possible with the exemption from the obligation to import duty.
               For these reasons and in view of the form of the import rules in cases where the levies are fixed in advance it must be accepted that importation for the purposes of Article 15 (2) of Regulation No 120/67 may only be regarded as completed when the goods are removed from a deferred levy warehouse.
            
         
               3. 
            
            
               In its third question the Finanzgericht seeks to know what rate of levy is applicable when the removal of goods from a deferred levy warehouse occurs after the expiry of the validity of an import licence and the question needs to be expounded in this way in particular of an import licence wherein the levy is fixed in advance.
               The plaintiff in the main action expressed the view that the answer to this question, taken as it stands, appears self-evident, and that the question is therefore superfluous and for that reason perhaps even inadmissible. At most it might be possible to re-phrase the question and in view of the basis of the dispute before the national court, extract from it the further question whether in transactions through warehouses of this type the removal from store is to be regarded as concluded when the goods are recorded as being received in the books of the warehouse and the notification is made to the Customs Office or whether actual removal of the goods from the warehouse must be required. The Government of the Federal Republic and the Commission oppose this view emphatically. In their view the question is certainly justified as it stands because the situation which it envisages offers several possible interpretations. Moreover the Commission points out that from the grounds of the order making the reference it appears that the Finanzgericht has reserved to itself the solution to the problems posed by the plaintiff since it is evidently of the opinion that this falls within the scope of national law. For that reason any re-interpretation of the question, that is, any attempt to discover the true intentions of the national court is not admissible.
               As regards this disagreement, which must be disposed of before any discussion of substance, the point of view of the Commission and of the Federal Republic must be followed. In fact it cannot be denied that the third question is clearly formulated. Even in this formulation this question has a meaning because it is by no means immediately clear, in cases where the levy is fixed in advance and where the goods are removed from the deferred levy warehouse after the expiry of the validity of an import licence, whether the levy applicable on that day must be applied or whether the rate fixed in advance can be extended to this time or whether the import must in fact be regarded as not permitted and the deposit as therefore forfeited etc. The third question must therefore foe answered as it is formulated. But this cannot prevent the Court—and the plaintiff is right on this point—from answering possible additional points which appear from the facts that is to say, even if the national court does not consider an interpretation to be necessary, in so far as these may be taken to be an implied question. Moreover for procedural reasons, namely in order to avoid another reference for a preliminary ruling, this may on occasion foe necessary. It will later appear how far this is necessary in the present case.
               If one first attempts to answer the question as it was put, then all that need be said may be put quite briefly. All the parties involved in the case have concurred in suggesting the same answer, that is, the conclusion that in such a case the levy applicable on the day is to be applied. It is not hard to prove that this is in fact correct. It may certainly be presumed that in cases where the levy has been fixed in advance, when the validity of the licence expires the rate of levy fixed in that licence must also cease to apply. Since on the other hand the application of levies fixed in advance evidently is an exception to the principle of the applicability of the levy in force on the day, then, in the absence of the preconditions for the application of the levy fixed in advance, only the general levy rules contained in Article 15 (1) of Regulation No 120/67 may be applied, that is to say, in circumstances such as those in the main action the rate of levy applying on the day of removal from store. That is the only reasonable solution in view of the fact that in spite of the absence of a valid licence imports were in fact made and can no longer be cancelled. In addition, as the Commission pointed out, the rule in Article 15 (1) of Regulation No 120/67 applies independently of /the licensing rules, that is to say, irrespective of whether a licence is necessary and valid. Therefore the third question is to be answered accordingly.
               If an opinion is also to foe given to the additional questions raised by the plaintiff then in this respect the Commission's view of the relevance in principle of national law must in its essentials be accepted. We have heard that the harmonization of customs law has not gone so far as to include all details of warehouse trade. In fact the technical organization of customs warehouses and the necessary supervisory measures which it involves lie in the area of implementation of customs legislation and thus within the national jurisdiction. The same must also apply as regards fixing the details of clearance of goods from such customs warehouses. Thus, even though it is clearly desired that the administrative control of customs warehouses should be as uniform as possible, it cannot foe said that in every case Community law permits the inference that removal from store must be regarded as effected when the goods are recorded as removed in the books of the warehouse when notification has been made to the appropriate Customs Office. In this respect reliance may not be placed upon the refund rules in Regulation No 1041/67 (OJ, English Special Edition, 1967, p. 323) whereby the export is regarded as completed when the customs authorities receive the declaration of the exporter. Here, as the Commission pointed out, there is involved a special problem, a kind of advance financing of the refunds. Moreover the interests involved in the case of imports are so different from those in the case of exports that inescapable conclusions may not foe drawn for the present case from Regulation No 1041/67. The only thing that may be said, from the point of view of Community law, on the problems raised by the plaintiff, is as follows: subject to the supervisory measures left to the national jurisdiction, the conception of removal from store in Community law is that this must foe regarded as completed when one of the events involved becomes definitive in the sense that the goods irrevocably enter free circulation. This can be said because, as we have seen, the goods have a decisive influence on the internal market under the levy rules.
               Thus according to the documents in the case and in view of the limits set for the interpretation of Community law the answer which must be given to the third question is also clear.
            
         
               4. 
            
            
               Therefore I would suggest the following answers to the questions put:
               
                        (a)
                     
                     
                        Article 15 (1) of Regulation No 120/67 is to be interpreted as meaning that when goods are stored in deferred levy warehouses (within the meaning of the provisions applicable in the Federal Republic of Germany before the adoption of the directive relating to customs warehouses of 8 March 1969) the day of the removal from store is to be regarded as the day of importation and consequently the rate of levy applicable on the day of removal from store must be applied.
                     
                  
                        (b)
                     
                     
                        Article 15 (2) of the Regulation No 120/67 is to be understood in the sense that in the case of goods stored in the said deferred levy warehouses the import transaction in this manner is to be regarded as completed on the day of removal from store.
                     
                  
                        (c)
                     
                     
                        If the removal from such a deferred levy warehouse occurs after the expiry of the validity of the import licence then the rate of levy applicable on the day of the removal from store is to be applied. The preconditions for regarding the removal from store as completed are to be decided according to the provisions of national law. It is sufficient for the principles of Community law that the events involved become definitive and that there is a definitive effect on the internal market.
                     
                  
         (
            1
         )	Translated from the German.