1 By application lodged at the Court Registry on 22 October 1990, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by maintaining in force provisions of national law contrary to Council Regulation (EEC) No 3632/85 of 12 December 1985 defining the conditions under which a person may be permitted to make customs declaration (Official Journal 1985 L 350, p. 1, hereinafter referred to as "the regulation"), the Portuguese Republic has failed to fulfil its obligations under the EEC Treaty.
2 Under Article 2 of the regulation, a customs declaration may be made by any person able to produce or cause to be produced to the competent customs authority, in accordance with the relevant provisions, the goods in question as well as all documents production of which is stipulated by the provisions governing the customs regime requested for the goods.
3 According to Article 3(1), (2) and (3) of the regulation: "(1) Where the customs declaration is made in writing, the person referred to in Article 2 may, without prejudice to the other provisions of this article, make the declaration: (a) in his own name and on his own behalf; or (b) in the name and on behalf of another person; or (c) in his own name but on behalf of another person. (2) The option of making the declaration referred to in paragraph 1(c) may be exercised only if the Member States have so provided. (3) Where a Member State authorizes the declaration to be made referred to in paragraph 1(c), the right (a) either to make declarations in the name and on behalf of another person, (b) or to make declarations in their own name but on behalf of another person, may be limited by that State to persons pursuing the activity of making customs declarations on a self-employed basis, either as their principal occupation or as a secondary activity related to another occupation."
4 Article 6(a) provides that the regulation does not form an obstacle to provisions of the Member States which, in accordance with Article 3(3), limit pursuit of the activity of making customs declarations either in the name and on behalf of another person or in their own name but on behalf of another person, to persons authorized to pursue such an activity by the competent authorities of the Member State concerned, on conditions defined by the latter with regard specifically to the professional qualifications required and the guarantees deemed necessary for pursuit of the activity.
5 Under Portuguese law, Article 426 of Decree-Law No 46311 of 27 April 1965 (hereinafter referred to as "the Customs Reform Law") reserves to official customs agents the right to make declarations in their own name but on behalf of another person. With regard to declarations made in the name and on behalf of another person, official customs agents are in competition with any other operator. However, Article 433(4) of the Customs Reform Law provides that persons acting in the name and on behalf of the owner of the goods concerned may not represent more than one principal. That provision thus precludes any person, other than an official customs agent, from making customs declarations in the name and on behalf of other persons as a regular part of his business activity.
6 The statutory rules applicable in Portugal to forwarding and shipping undertakings were laid down by Decree-Law No 43 of 25 January 1983. Article 7(4) of that decree-law prohibits those undertakings from making customs declarations.
7 The parties to the dispute do not agree on the interpretation to be given to that provision. The Commission considers that it imposes on forwarding and shipping undertakings an absolute prohibition on making customs declarations on behalf of another person. On the other hand, the Portuguese Government considers that the prohibition only relates to the making of customs declarations by those undertakings as a regular part of their business activity and that they may therefore, like any other person, make declarations in the name and on behalf of another person, provided that they do not represent more than one principal at a time.
8 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
9 In support of its action, the Commission claims that Article 7(4) of the aforesaid decree-law disregards the alternative laid down in Article 3(3) of the regulation. After emphasizing that the latter provision authorizes the Member States to reserve to a given professional category only one of the two methods of making a customs declaration mentioned in that provision, the Commission states that, in the case in point, the method not reserved for customs officials, namely making the declaration in the name and on behalf of another person, ought to have been left freely available to any interested operator.
10 The Commission adds that this finding cannot be invalidated by the interpretation of the national provision at issue relied on by the Portuguese Government, according to which that provision merely subjects the making of declarations in the name and on behalf of another person by forwarding and shipping undertakings, as in the case of any other person, to the condition that they do not represent more than one principal at a time. In that respect, the Commission claims that Article 3(3) of the regulation contains no such restriction and, consequently, the undertakings in question must be able to make the declarations concerned, if appropriate, as a regular part of their business activity.
11 The Portuguese Government contends, on the other hand, that the alternative laid down in Article 3(3) of the regulation has been respected. It asserts that Article 426 of the Customs Reform Law reserves solely to official customs agents the right to make customs declarations in their own name and on behalf of another person, and that customs declarations in the name and on behalf of another person may be made by any other operator including, therefore, forwarding and shipping undertakings. In its view, the fact that only customs agents may make such declarations on behalf of more than one principal and are, in practice, the only ones able to do so as a regular part of their business activity, is not contrary to the regulation since the regulation in no way requires that forwarding and shipping undertakings be allowed to take up the activity of customs agents. On the contrary, it considers that Article 6(a) of the regulation expressly permits professional qualifications to be maintained with regard to the making of customs declarations.
12 It must be stated first of all that Article 3(3) of the regulation permits only one of the two types of representation envisaged in that provision to be reserved for a professional category. A national rule which absolutely prohibits certain undertakings, other than those falling within that category, from making customs declarations on behalf of another, whether in their own name or in the name of another person, disregards the alternative laid down in Article 3(3) and is accordingly contrary to the regulation.
13 Next, it should be noted that, irrespective of the interpretation to be given to the Portuguese legislation in question, the requirements of Article 3(3) of the regulation are satisfied only if the activity which is not reserved can in fact be freely pursued. That article aims to ensure that importers of goods should not be required, for the purpose of making their customs declarations, to resort exclusively to official agents for whom the Member State has reserved one of the two types of representation, but should be able to exercise some freedom of choice between different categories of competing operators.
14 That freedom is restricted where a Member State prohibits any undertaking, other than official customs agents for which it has reserved one of the two types of representation, from carrying out the other type of representation as a regular part of its business activity. Such a prohibition protects official customs agents against any effective competition by other undertakings, and accordingly grants them a de facto monopoly with regard to customs declarations made on behalf of another person.
15 It should be pointed out in that regard that the professional qualifications referred to in Article 6(a) of the regulation apply only to the professional category to which a Member State has granted, in accordance with Article 3(3), the exclusive right to carry out one of the two types of representation. Article 6(a) does not therefore permit the other type of representation, by those not falling within that category, to be restricted to purposes other than those forming a regular part of their business activity.
16 It must be held that Portuguese customs law reserves for official customs agents the right to make customs declarations in their own name and on behalf of another person, and prohibits undertakings other than those agents from making such declarations in the name and on behalf of another person as a regular part of their business activity.
17 It follows that the Portuguese Republic has failed to fulfil its obligations under the regulation in so far as Article 426 of the Customs Reform Law and Article 7(4) of Decree-Law No 43 of 25 January 1983 prevent forwarding and shipping undertakings from making customs declarations in the name and on behalf of another person as a regular part of their business activity.