René Lancry SA v Direction Générale des Souanes and Société Dindar Confort, Christian Ah-Son, Paul Chevassus-Marche, Société Conforéunion and Société Dindar Autos v Conseil Régional de la Réunion and Direction Régionale des Douanes de la Réunion.
Date: 1994-08-09
7 In Case C-163/90 Administration des Douanes et Droits Indirects v Legros and Others [1992] ECR I-4625, a number of questions on the interpretation of the Treaty were referred to the Court for a preliminary ruling, with respect to charges exhibiting the features of dock dues. In its judgment in that case, the Court held that a charge proportional to the customs value of goods levied by a Member State on goods imported from another Member State by reason of their entry into a region of the territory of the first Member State constitutes a charge having effect equivalent to a customs duty on imports, notwithstanding the fact that the charge is also imposed on goods entering that region from another part of the same State. However, the Court limited the temporal effects of that judgment.
25 First, the Court has consistently held that the justification for the prohibition of customs duties and charges having equivalent effect is based on the fact that any pecuniary charges imposed on goods by reason of the fact that they cross a frontier constitutes an obstacle to the movement of such goods (see, in particular, the judgment in Joined Cases 2/69 and 3/69 Diamantarbeiders v Brachfeld [1969] ECR 211, point 14).
26 In the Legros judgment, the Court noted (at paragraph 16) that a charge levied at a regional frontier by reason of the fact that goods are brought into one region of a Member State undermines the unity of the Community customs territory and constitutes an obstacle to the free movement of goods at least as serious as a charge levied at a national frontier on products entering a Member State as a whole.
29 Since the very principle of a customs union covers all trade in goods, as provided for by Article 9 of the Treaty, it requires the free movement of goods generally, as opposed to inter-State trade alone, to be ensured within the union. Although Article 9 et seq. makes express reference only to trade between Member States, that is because it was assumed that there were no charges exhibiting the features of a customs duty in existence within the Member States. Since the absence of such charges is an essential precondition for the attainment of a customs union covering all trade in goods, it follows that they are likewise prohibited by Article 9 et seq.
30 Secondly, the situation does not appear to be of a kind where all the components are wholly confined to one Member State. As the French Government has correctly pointed out, the levying of charges exhibiting the features of dock dues could be classified as a purely internal situation only if the dues were levied exclusively on products from the same Member State. It is not disputed that dock dues apply to all products entering the overseas department concerned, irrespective of their origin. It would accordingly be inconsistent to hold, on the one hand, that dock dues constitute charges having equivalent effect in so far as they are levied on goods from other Member States and to concede, on the other, that those dues do not constitute charges having equivalent effect where they are levied on goods from metropolitan France.
32 The answer to the first question referred by the Tribunal d' Instance, Saint-Denis, must therefore be that a charge proportional to their customs value, levied by a Member State on all goods entering a region within that State, constitutes a charge having equivalent effect to a customs duty on imports not only in so far as it is levied on goods entering that region from other Member States, but also in so far as it is levied on goods entering that region from another part of the same State.
The validity of the decision on dock dues (question referred by the Cour d' Appel, Paris, and second question referred by the Tribunal d' Instance, Saint-Denis)
36 According to the case-law of the Court (see the judgment in Case 148/77 Hansen v Hauptzollamt Flensburg [1978] ECR 1787, and the judgment in Legros, cited above, at paragraph 8), it follows from Article 226 that the provisions of the Treaty expressly referred to in the first subparagraph of Article 227(2) have been applicable in the French overseas departments ever since the Treaty entered into force, while, with regard to the other provisions, it remains possible subsequently, even after the period of two years mentioned in the second subparagraph, to adopt specific measures in order to meet the needs of those territories.
37 By expressly authorizing the Council to determine the conditions of application only of those Treaty provisions not listed in its first subparagraph, Article 227(2) excludes the possibility of derogating from the application in the French overseas departments of the provisions which are mentioned therein, including those relating to the free movement of goods. To interpret Article 235 of the Treaty as allowing the Council to suspend, even temporarily, the application of Articles 9, 12 and 13 of the Treaty in the French overseas departments would be to disregard the fundamental distinction established by Article 227(2) and to deprive its first subparagraph of its effectiveness.
40 The French Government, supported by the Région Réunion, is asking the Court to limit the temporal effects of its judgment, as it did in Legros, in the event of a declaration that the decision on dock dues is invalid. The French Government considers that the conditions laid down by the Court for imposing such limits ° first, the risk of serious economic consequences and, second, uncertainty as to the scope of the Community provisions ° are satisfied in this case. As regards the first condition, it would be hard for the local authorities to which the dock dues are paid to bear the economic consequences of a ruling to the effect that the decision is invalid since, according to the French Government, the limitation to which the Court agreed to have recourse in Legros relates only to dock dues levied on the basis of national law alone and does not apply to sums levied on the basis of Article 4 of the decision after 22 December 1989, the date on which it was adopted. As for the second condition, the French Government points out that the Court ruled in the Legros case that the particular features of dock dues and the specific characteristics of the overseas departments created a state of uncertainty as to whether those charges were lawful from the point of view of Community law; that uncertainty, according to the French Government, appeared to have been removed by the decision on dock dues.
41 Those arguments cannot be accepted.
42 In the first place, it must be borne in mind that in this judgment the Court has declared the decision on dock dues invalid in so far as it authorizes the French Republic to maintain the dock dues arrangements in force until 31 December 1992. It follows that dock dues levied between the date on which the decision of 22 December 1989 came into operation and 31 December 1992 were of exactly the same legal nature as those levied before that period, that is to say they were charges having equivalent effect to customs duties levied on the basis of national law.
43 It follows that the temporal limitation imposed by the Court in the Legros judgment applies also to actions for repayment of sums levied as dock dues after the decision of 22 December 1989 came into operation until 16 July 1992, the date on which that judgment was given.
44 Secondly, in his Opinions of 21 November 1991 and 20 May 1992, Advocate General Jacobs made very clear his view that the decision on dock dues was invalid in so far as it authorized the dock dues arrangements to be maintained in force at the time of its adoption. It is true that in the Legros judgment, the Court did not rule on the validity of the decision on dock dues. However, at the hearing in the Legros case on 31 March 1992, the French Government pointed out in particular that the Court was not called upon, in those proceedings for a preliminary ruling, to rule on the validity of that decision. The French Republic could not therefore reasonably have inferred from the Court' s silence on that point that the decision on dock dues authorized it to maintain the dock dues arrangements then in force after 22 December 1989.
45 It follows that after 16 July 1992, the date of the Legros judgment, the French Government could not reasonably have continued to believe that the relevant national legislation was in conformity with Community law. Moreover, the interests of the local authorities are adequately protected by the temporal limitation set by the Court in Legros. There is therefore no need to limit the temporal effects of this judgment.