1. By judgment of 17 July 2001, received at the Court on 23 July 2001, the Cour de cassation (Court of Cassation) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of Article 70(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, ‘the Community Customs Code’).
2. This question was raised during a dispute between Derudder & Cie SA (‘Derudder’), customs declarant, and the Receveur principal des douanes (Principal Collector of Excise Duties) of Villepinte (France) concerning a demand issued by the latter for payment of the sum of FRF 467 045 corresponding to the amount of additional duty on the import of rice following an analysis of samples of that merchandise. Legal background The rules applicable before the entry into force of the Community Customs Code
3. Article 9 of Council Directive 79/695/EEC of 24 July 1979 on the harmonisation of procedures for the release of goods for free circulation (OJ 1979 L 205, p. 19) provides: ‘1. Without prejudice to any other means of control at its disposal, the customs authority may examine all or part of the goods entered. …
4. The declarant shall be entitled to be present at the examination of the goods or to be represented at it. If the customs authority sees fit, it may require the declarant to be present at the examination of the goods or to be represented at it in order to assist with the examination, as necessary.
5. When examining the goods, the customs authority may take samples for analysis or for more detailed examination. The costs arising from such analysis or more detailed examination shall be borne by the administrative authority.’ 4. Article 10 of Directive 79/695 states: ‘1. The results of the examination of the entry and the documents attached to it, whether or not combined with examination of the goods, shall be used for calculating the import duties and for applying any other provisions governing the release of goods for free circulation. Where neither the entry and the documents attached to it, nor the goods themselves are examined, such duties shall be calculated and such provisions shall be applied on the basis of the particulars contained in the entry. 2. Paragraph 1 shall be without prejudice to either any subsequent verification by the competent authorities of the Member State in which the goods have been released for free circulation or the possible consequences of applying the provisions in force, particularly as regards any change in the amount of import duty charged on these goods.’ 5. Finally, Article 13(3) of Directive 79/695 provides that ‘until released for free circulation, goods may not be moved from where they are, or handled in any way whatsoever, without the authorisation of the customs authority’.
6. As regards the examination of goods required by Directive 79/695, Article 11 of Commission Directive 82/57/EEC of 17 December 1981 laying down certain provisions for implementing Directive 79/695/EEC (OJ 1982 L 28, p. 38), as amended by Commission Directive 83/371/EEC of 14 July 1983 (OJ 1983 L 204, p. 63, ‘Directive 82/57’) reads as follows: ‘Where it decides to examine a part of the goods only, the customs authority shall inform the declarant or his representative which items it wishes to examine. The authority’s choice shall be final. The findings of such partial examination shall apply to all goods covered by the entry in question. However, the declarant may request a further examination should he consider that the findings of the partial examination are not valid for the remainder of the goods declared.’
7. Article 12(1) and (2) of Directive 82/57 provides: ‘1. Where the customs authority elects to examine goods it shall so inform the declarant or his representative. 2. The declarant or the person designated by him to be present at the examination of the goods shall provide the customs authority with the assistance required to facilitate its work.’
8. Article 13(1) and (2) of Directive 82/57 provides, regarding the taking of samples: ‘1. Where the customs authority decides to take samples, it shall so inform the declarant or his representative. Should it consider this desirable, the customs authority may require the declarant to be present at the taking of samples, or to arrange to be represented by a person able to tender the authority the necessary assistance. 2. Samples shall be taken by the customs authority, which may, however, ask that this be done under its supervision by the declarant or a person designated by him. Samples shall be taken in accordance with the methods laid down in the provisions in force.’
9. Article 14(1) of Directive 82/57 provides that ‘the declarant or the person designated by him to be present at the taking of samples shall render to the customs authority all the assistance needed to facilitate the operation’.
10. Article 15 of Directive 82/57 provides: ‘Where the customs authority takes samples for analysis or more detailed examination, it shall authorise the release of the goods in question without waiting for the results of the analysis or examination, unless there are other grounds for not doing so. In this case, the provisions of Article 20 shall apply.’
11. Finally, the first subparagraph of Article 20(1) of Directive 82/57 provides: ‘Where the customs authority, while waiting for the result of the checks which it has undertaken, whether in order to verify the statements made in the entry or the documents accompanying it or to examine the goods, does not consider that it is in a position to assess the amount of import duties payable on the goods, it may nonetheless, if the declarant requests it, grant release for free circulation of the goods in question. Authorisation of release may not be withheld on the sole ground that the final determination of customs value has been delayed or that the origin of goods for which a preferential tariff treatment is claimed by virtue of the origin of these goods is not finally established. The granting of this release shall give rise to the immediate entry in the accounts of the import duties as assessed according to the statements made in the entry.’ The Community Customs Code and the rules laid down for its application
12. Directives 79/695 and 82/57 were repealed by the Community Customs Code and by Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 (OJ 1993 L 253, p. 1) respectively. The Code and the regulation, however, which entered into force on 1 January 1994, contain provisions which essentially reproduce the terms of the provisions of Directives 79/695 and 82/57 cited above.
13. Article 68 of the Community Customs Code provides: ‘For the verification of declarations which they have accepted, the customs authorities may: (a) examine the documents covering the declaration and the documents accompanying it. The customs authorities may require the declarant to present other documents for the purpose of verifying the accuracy of the particulars contained in the declaration; (b) examine the goods and take samples for analysis or for detailed examination.’
14. Article 69(2) of the Community Customs Code provides: ‘The declarant shall be entitled to be present when the goods are examined and when samples are taken. Where they deem it appropriate, the customs authorities shall require the declarant to be present or represented when the goods are examined or samples are taken in order to provide them with the assistance necessary to facilitate such examination or taking of samples.’
15. Article 70(1) of that Code provides: ‘Where only part of the goods covered by a declaration are examined, the results of the partial examination shall be taken to apply to all the goods covered by that declaration. However, the declarant may request a further examination of the goods if he considers that the results of the partial examination are not valid as regards the remainder of the goods declared.’
16. Article 71 of the Code states: ‘1. The results of verifying the declaration shall be used for the purposes of applying the provisions governing the customs procedure under which the goods are placed. 2. Where the declaration is not verified, the provisions referred to in paragraph 1 shall be applied on the basis of the particulars contained in the declaration.’
17. Article 78 of the Community Customs Code provides: ‘1. The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods. 2. The customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect the commercial documents and data relating to the import or export operations in respect of the goods concerned or to subsequent commercial operations involving those goods. Such inspections may be carried out at the premises of the declarant, of any other person directly or indirectly involved in the said operations in a business capacity or of any other person in possession of the said documents and data for business purposes. Those authorities may also examine the goods where it is still possible for them to be produced. 3. Where revision of the declaration or post-clearance examination indicates that the provisions governing the customs procedure concerned have been applied on the basis of incorrect or incomplete information, the customs authorities shall, in accordance with any provisions laid down, take the measures necessary to regularise the situation, taking account of the new information available to them.’
18. Finally, under the first subparagraph of Article 243(1) of that Code: ‘Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him directly and individually.’
19. Articles 240 to 244 of Regulation 2454/93 correspond, in essence, to Articles 11 to 15 of Directive 82/57, whilst Article 248 of the regulation largely reproduces the terms of Article 20 of that directive. The rules applicable to imports of rice into the Community
20. Article 2(2) of Regulation (EEC) No 2729/75 of the Council of 29 October 1975 on the import levies on mixtures of cereals, rice and broken rice (OJ 1975 L 281, p. 18) states: ‘The import levy applicable to mixtures composed either of rice classifiable under several different processing groups or stages or of rice classifiable under one or more different processing groups or stages and of broken rice shall be that applicable: - to the component predominating by weight, when that component represents at least 90 % of the weight of the mixture, - to the component liable to the higher or highest import levy, when no component represents at least 90 % of the weight of the mixture.’
21. Under point 3 of Annex A to Council Regulation (EEC) No 1418/76 of 21 June 1976 on the common organisation of the market in rice (OJ 1976 L 166, p. 1), applicable at that time of the facts of the main proceedings, broken rice is defined as ‘grain fragments the length of which does not exceed three quarters of the average length of the whole grain’. As regards the measurement of the grains of rice, it is specified at point 2(c)(i) of that annex that measurement should be carried out, in particular, by taking ‘a representative sample from the consignment’. The main proceedings and the question referred
22. By declaration registered at the customs office of Villepinte on 8 November 1989 Derudder released for free circulation, on behalf of Tang Frères, a consignment of goods originating from Thailand named ‘Thaï Flagrant [sic] Broken Rice’. As those goods were declared as ‘broken rice’, the import duty corresponding to that Combined Nomenclature subheading was applied to them.
23. With a view to checking the goods, the officials of that customs office took samples of them, in the presence of a representative of Derudder, for analysis by a laboratory approved by the customs authorities. According to the information provided by the referring court, neither Derudder nor its representative challenged on the date on which the samples were taken the representativeness of the samples, nor did they ask the customs officials to take additional samples. As the declarant had expressed the wish to sell the imported rice quickly, the goods were released immediately after the samples had been taken.
24. As analysis of the sampl es taken showed that the consignment did not contain at least 90% broken rice as defined in point 3 of Annex A to Regulation No 1418/76, the customs authorities considered it appropriate to apply, under the second indent of Article 2(2) of Regulation No 2729/75, the higher duty applicable to imports of whole-grain rice. On 25 May 1992 the Principal Collector of Excise Duties of Villepinte issued a demand to Derudder for the additional duty considered due on the imports made on behalf of Tang Frères, in the sum of FRF 467 045.
25. Disputing both the method used by the customs authorities to analyse the samples taken and the representativeness of those samples, Derudder then brought an action against the Principal Collector of Excise Duties before the Tribunal d’instance (District Court) of Bobigny (France) seeking the annulment of that demand. The customs authorities brought a counterclaim before the same court seeking payment of the contested additional duty.
26. By interlocutory judgment of 6 April 1993, the Tribunal d’instance de Bobigny held that in order to determine the exact amount of duty payable on the consignments of rice imported, it was necessary, in accordance with the Court’s case-law, in particular its judgment in Case C-159/88 Van Sillevoldt and Others [1990] ECR I-2215, to take into account the average length of the whole grains of rice contained in a sample taken from a consignment of the imported rice, excluding immature grains. Consequently, an expert’s report was commissioned by that court to determine firstly the average length of the whole grains of rice in the consignment imported according to the method recommended by the Court of Justice and secondly to assess whether the broken rice as a whole amounted to at least 90% of that batch.
27. In his report, sent to the Tribunal d’instance de Bobigny in October 1994, the expert essentially arrived at the same conclusions as those obtained by the customs authorities as regards the average length of the whole grains present in the samples taken and the proportion of broken rice contained in them, which was clearly less than 90% of the weight of the batch. However, he expressed reservations regarding both the method of analysis used by those authorities and the representativeness of the samples in question. With regard to the method of analysis used by the customs authorities, the expert stated that it was technically impossible to differentiate between immature grains and fully mature grains, since in practice there was no way to distinguish the two types of grain. As regards the representativeness of the samples taken by the officials of the customs office of Villepinte, the expert observed that those samples had been taken without reference to any statistical sampling plan and that the results of the analysis of those samples, although they appeared to be correct, could not be extrapolated to cover the entirety of the imported goods.
28. On the basis of that report, the Tribunal d’instance de Bobigny, by judgment of 17 May 1996, upheld Derudder’s claim and annulled the disputed demand for payment. It was held in this regard, in particular, that the presence of a representative of Derudder at the time when the samples were taken by the customs authorities, ‘may put beyond dispute the fact that the samples produced in fact come from the imported consignment, but does not permit the conclusion to be drawn automatically that they are representative, nor does it prevent the importer from raising a claim in that regard’.
29. Since the appeal against that judgment was rejected on the same grounds by judgment of the Cour d’appel de Paris (Court of Appeal) (France) of 29 January 1999, the Principal Collector of Excise Duties of Villepinte lodged a further appeal before the Cour de cassation (Court of Cassation) on a point of law against that judgment, pleading breach firstly of Articles 447-1 and 450-2 of the French Customs Code which requires, where an expert’s report has been commissioned by the court, that it be obtained from the Commission de conciliation et d’expertise douanière (Customs and Excise Commission for conciliation) and, secondly, of Article 70 of the Community Customs Code. With regard to the latter provision, the Principal Collector of Excise Duties submits, in particular, that it was breached by the Cour d’appel in that it held that the result of the examination of the samples taken of the imported goods could not be considered as valid for the entirety of the goods, despite the fact that the samples were taken in the presence of both parties without any request being made by the declarant or its representative to the customs office involved that additional samples be taken.
30. Considering that in these circumstances the outcome of the dispute before it depended on an interpretation of Community law, the Cour de cassation decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling: ‘On a proper construction of Article 70(1) of the Community Customs Code, where a representative of the declarant is present when the customs authorities take a sample of the goods and he does not challenge the representativeness of that sample, is the declarant no longer entitled to challenge the representativeness of that sample before the court hearing the application for payment of the additional import levies considered by the customs authorities to be due?’ The question referred
31. By its question, the referring court asks the Court in essence whether the Community rules are to be interpreted as meaning that it is permissible for a customs declarant or his representative present when a sample was taken by the customs authorities of imported goods and who did not at the time dispute the representativeness of that sample to challenge its representativeness when requested by those authorities to pay additional import duties following their analysis of that sample. Observations submitted to the Court
32. According to Tang Frères, this question should be answered in the affirmative. It considers that it should still be possible to challenge before a court the representativeness of a sample taken in circumstances such as those forming the subject of the main proceedings since, firstly, the Community Customs Code does not require the customs declarant to be present when the goods are examined or to know the specific characteristics of each of them and, secondly, Article 70(1) of that Code refers only to a partial examination of goods and not to the taking of samples. The legal presumption that the results of that examination will be representative of the entirety of the goods declared does not therefore apply to the taking of samples.
33. Even if such representativeness were accepted, the fact that the samples were taken in the presence of both parties cannot, according to Tang Frères, deprive the declarant or his representative of the possibility of raising an objection at a later stage, since it follows from the wording of the second subparagraph of Article 70(1) of the Community Customs Code that the declarant may request an additional examination only if he is dissatisfied with the results of the partial examination of the goods. By definition, an objection cannot therefore be formulated before the results of that examination are known. Any other interpretation would run counter to the fundamental right of appeal enshrined both in Article 243 of that Code and in the case-law of the Court of Justice.
34. Although the French and Italian Governments and the Commission agree in essence with the interpretation put forward by Tang Frères, they attach to it certain reservations.
35. In the view of the Italian Government, the declarant should make known his potential objections regarding the representativeness of the sample at the latest when the customs authorities issue the taxation notice.
36. The French Government and the Commission, whilst observing that the facts of the main proceedings are governed not by the Community Customs Code but by Directives 79/695 and 82/57, maintain that the right to challenge the representativeness of a sample is extinguished, in principle, when the goods in question are released, since from that moment they have left the control of the customs authorities. The French Government bases its argument in this regard on the wording of the first subparagraph of Article 15 of Directive 82/57, according to which the customs authorities release goods of which samples have been taken only ‘if nothing else precludes it’, whilst the Commission points to the aim of the Community Customs legislation, which is to guarantee a rapid examination of the goods at the time of their clearance through customs. According to the Commission, therefore, only the results of the analyses of the samples can be challenged, if necessary, after the customs authorities have released the goods in question. Reply of the Court
37. It should be observed at the outset that the provision mentioned by the referring court in its question, that is to say Article 70 of the Community Customs Code, was not yet in force when the events leading to the main proceedings took place. Whilst the Community Customs Code, by virtue of Article 253(2) thereof, applies only from 1 January 1994, the customs formalities contested by Derudder were completed in November 1989 and the disputed demand for payment was issued in May 1992.
38. In order to give a helpful answer to the referring court, it is therefore appropriate also to interpret the Community provisions relating to the taking of samples by the customs authorities which were applicable at the time of the events leading to the main proceedings, that is to say the provisions of Directives 79/695 and 82/57 and, more specifically, Articles 9 and 10 of Directive 79/695 and Article 11 of Directive 82/57, the wording of which directly formed the basis of Article 70 of the Community Customs Code.
39. It is immediately apparent that there is no provision either in the Community Customs Code or in Directives 79/695 and 82/57 which tends to limit, in any way at all, the right of the declarant or his representative to challenge the representativeness of samples of imported goods after they have been taken, on the ground that he was present when the samples were taken but did not raise a formal objection at that time in respect of the representativeness of the samples.
40. Firstly, it follows clearly from both Article 69(2) of the Community Customs Code and those directives, in particular Article 9(4) and (5) of Directive 79/695 and Article 13(1) of Directive 82/57, that, although the declarant or his representative must be informed that samples of the goods will be taken by the customs authorities, there is no requirement for him to be present when the samples are taken, so that, in that situation, it would by definition not be possible for him to raise objections at the time when the samples were taken.
41. Secondly, it also follows from the Community Customs Code and its implementing rules, as well as from those directives, that, when a declarant or his representative is present when samples are taken, his freedom of action is largely restricted, since it is clear from Article 13(2) of Directive 82/57 and the first subparagraph of Article 242(2) of Regulation No 2454/93 that in principle the samples are taken by the customs authorities themselves.
42. In such circumstances, the right to challenge the representativeness of a sample of the imported goods taken by the customs authorities cannot a priori be denied to the declarant or his representative, even if he made no objection in this regard at the time the samples were taken. In addition to the fact that such an interpretation is in no way precluded by the wording of the abovementioned provisions, it also coincides fully with the actual aim of the Community customs rules, as stated in particular in the ninth recital in the preamble to Directive 79/695 and the fifth recital in the preamble to the Community Customs Code, that is to say to ensure the correct application of duties, charges and levies laid down by that legislation. Whilst to that end the customs authorities must be regarded as having wide powers of inspection, traders must also have the right to contest decisions taken by those authorities, in particular where, as in the main proceedings, they consider that the samples taken for analysis by those authorities are not representative of the whole of the goods imported and because of that have led to incorrect assessment of import duties.
43. Although it follows from those considerations that a customs declarant or his representative may be permitted to challenge the representativeness of a sample taken from imported goods, even if he was present when the samples were taken and at that time raised no objection in this regard, both the principle of legal certainty and the need to give practical effect to Directives 79/695 and 82/57 and the Community Customs Code require that the possibility of raising the objection be restricted in time. It must lapse when the customs authority releases the goods concerned, except where it can be shown that the condition of those goods was not altered in any way whatsoever after the release, so that the possibility remains of conducting inspections and, if necessary, of taking additional samples.
44. As the Commission rightly pointed out in the written observations which it submitted to the Court, that interpretation - which relies in particular on the wording of Article 13(3) of Directive 79/695, according to which ‘until released for free circulation, goods may not be moved from where they are, or handled in any way whatsoever, without the authorisation of the customs authority’ - serves primarily to meet obvious practical needs, since a customs declarant or his representative will not normally still be in a position to challenge the representativeness of a sample when the imported goods have been released and sold.
45. Restricting in time the possibility of challenging the representativeness of a sample taken from those goods also satisfies the actual aim of Directives 79/695 and 82/57 and of the Community Customs Code, which are intended to guarantee rapid and efficient procedures for the release for free circulation since, if the declarant could challenge that representativeness for an unlimited period, the customs authorities would be forced, in order to guard against such a risk, to make a detailed inspection of all goods declared to customs as a matter of course, which would serve neither the interests of traders, who are in general concerned to obtain the release, as was the case in the main proceedings, in order to be able rapidly to sell the goods declared by them, nor the interests of those authorities, for whom a systematic examination of declared goods would mean a considerable amount of extra work.
46. Finally, an interpretation by which the possibility of challenging the representativeness of a sample is to be limited to the period during which the imported goods are still available so that, if necessary, additional samples may be taken is corroborated by the wording of the Community Customs Code and in particular of Article 78(2) thereof, according to which the customs authorities may, after releasing the goods and in order to satisfy themselves as to the accuracy of the particulars contained in the declaration, inspect those goods ‘where it is still possible for them to be produced’. If the possibility for those authorities subsequently to verify the customs declarations thus requires the goods declared to remain available, the same must of necessity be true for the possibility for a customs declarant or his representative to challenge the representativeness of a sample. That opportunity to raise an objection therefore presupposes that the goods in question have not been released, or, if they have, that they have not been altered in any way whatsoever, which is for the declarant or his representative to prove.
47. In the light of all the above considerations, the answer to the question referred must be that Directives 79/695 and 82/57 and the Community Customs Code are to be interpreted as meaning that it is permissible for a customs declarant or his representative present when a sample was taken by the customs authorities of imported goods and who did not at the time dispute the representativeness of that sample to challenge its representativeness when requested by those authorities to pay additional import duties following their analysis of that sample, provided that the goods concerned have not been released or, if they have been released, that they have not been altered in any way whatsoever, which is for that declarant to prove.