C-12/70

JUDGMENT OF THE COURT 22 OCTOBER 1970<apnote>1</apnote>

Paul Craeynest and Another v Belgian State (Reference for a preliminary ruling by the Belgian Cour de Cassation)

Case 12/70

Summary

Agriculture — Common agricultural policy — Common organization of the market — Milk and milk products — Importation from a Member State — Benefit under the Community scheme — Certificate DD4 required (Regulation No 13/64/EEC of the Council of 5 February 1964 on the progressive establishment of a common organization of the market in milk and milk products (OJ No 34 of27.2.1964, p. 549) ; decision of the Commission of 17 July 1962 setting up special methods of administrative co-operation for applying the intra-Community levies set up under the common agricultural policy (OJ No 76 of 24.8,1962, p. 2140))

Subject to the exceptions provided for DD4. This interpretation must also be ap­ therein, Regulation No 13/64/EEC and the plied where it is necessary to establish the Commission's decision of 17 July 1962 must amount of levies evaded as a result of be 'interpreted to mean that importers of fraudulent importation, even though the goods from another Member State may only Community origin of the product in ques­ benefit from the intra-Community scheme tion could be established by means other in respect of goods covered by certificate than the said certificate.

1 — Language of the Case: Dutch.

JUDGMENT OF 22. 10. 1970 — CASE 12/70

(2) Belgian State, represented by the Minister for Economic Affairs

on the interpretation of Articles 1 to 12 of Regulation No 13/64 EEC of the Council of 5 February 1964 on the progressive establishment of a common organization of the market in milk and milk products (OJ No 34 of 27. 2.1964, p. 549), Articles 1 and 2 of the Commission's decision of 5 December 1960 relating to methods of administrative co-operation for the purpose of applying Article 9 (2) of the EEC Treaty (OJ No 4 of 20.1.1961, p. 29) and Articles 1 and 2 of the Commission's decision of 17 July 1962 setting up special methods of administrative cooperation for applying the intra-Community levies set up under the common agricultural policy (OJ No 76 of 24. 8.1962, p. 2140).

THE COURT

composed of R. Lecourt, President, A. M. Donner and A. Trabucchi, presidents of Chambers, W. Strauß (Rapporteur), R. Monaco, J. Mertens de Wilmars and P. Pescatore, Judges,

CRAEYNEST ν BELGIUM

State. 'Whether Articles 1 to 12 of Regulation On 28 February 1964 Regulation No 13/64/ No 13/64/EEC in conjunction with EEC of the Council (OJ No 34 of27. 2.1964, Articles 1 and 2 of the Commission's p. 549) on the progressive establishment of a decision of 5 December 1960 and Articles common organization of the market in milk 1 and 2 of the Commission's decision 'of and milk products entered into force. 17 July 1962 must be interpreted to mean that, in the absence of certificate DD4,

been evaded. The judgment pointed out in Regulation No 13/64/EEC, the amount particular in this connexion that, as the of the levies shall be fixed by each product in question had not been imported Member State, it must be fixed in ac in conjunction with a certificate DD4, the cordance with the rules laid down in that amount which should have been applied was regulation; that laid down for imports from third countries. — for the period in dispute the amount of As, by decision of 6 February 1969, the the 'third country' levies was consider Cour d'Appel, Ghent, upheld this judgment, ably higher than the amount of the levies Mr Craeynest and Mr Vandewalle lodged a applying to imports from the Nether further appeal before the Cour de Cassa

JUDGMENT OF 22. 10. 1970 — CASE 12/70

1970. The parties concerned state that they leave Under Article 20 of the Protocol on the the first question to the wisdom of the Statute of the Court of Justice of the EEC, Court. Mr Craeynest and Mr Vandewalle, the As regards the second question they con Government of the Kingdom of Belgium sider that even supposing that the reduced and the Commission of the European Com tariff is only applicable on presentation of munities submitted written observations. certificate DD4, the intra-Community Upon hearing the report of the Judge- tariff is none the less applicable in the case Rapporteur and the views of the Advocate- of fraudulent importation. It is no doubt the General, the Court decided to open the oral result of the combined provisions of Article procedure without holding any preparatory 11 of Regulation No 13/64/EEC and of

Such importa for Economic Affairs, assisted by Mr Hou tions are simply prohibited. There is thus no tekier, Advocate, of the Cour de Cassation. reason for Community regulations to deter The Commission was represented by its mine the tariff which the national author Legal Adviser, J. H. J. Bourgeois. ities must apply in such a case, as the parties The Advocate-General delivered his opinion concerned succeed in avoiding their inter on 17 September 1970. vention. In the case of clandestine importation the State concerned is only entitled to require IV — Observations submitted under payment of an amount equal to the levy Article 20 of the Protocol on which would have been imposed in the case the Statute of the Court of an importation in due form. The preamble to Regulation No 13/64/EEC shows that the purpose of intra-Community These observations may be summarized as levies is not to encourage the unification of follows: the Common Market; rather, they con stitute measures which are tolerated on a

CRAEYNEST ν BELGIUM

It is clear from that decision that in the absence of certificate DD4, it is not the intra-Com 2. The Belgian Government states that it is munity system which applies but rather that acting in its capacity as representative of a provided for in relation to trade with third Member State and puts forward the follow countries. In fact, the absence of this certi ing principal considerations: ficate leads to the assumption that the con The problem submitted to the Court lies ditions for its acquisition have not been ful principally in the interpretation to be given, filled and that as a result the goods in ques first, to the principle that the Community tion are not in free circulation.

provisions. provisions as well as with the general prin ciples of Belgian law according to which im A — The Belgian Government maintains ports effected without a licence are subject that, like every customs union, that estab to the highest duty. lished by the Treaty is characterized by the presence of two factors: within the union, 3. The Commission of the European Com the creation of an area in which free move munities puts forward the following prin ment of goods is guaranteed between the cipal considerations : States taking part therein ; outside the union, the adoption of a common customs tariff A — It refers first to the essential elements applying to goods coming from third of what it terms the 'preferential Commun countries. ity scheme'. After alluding to Title I of Part Goods which are not considered to be in two of the Treaty, and in particular to free circulation in the Member States (cf. Article 9 (2), it goes on to deal with the pro Articles 9 (2) and 10 (1) of the Treaty) are visions concerning the agricultural sector not covered by the internal element of the which derogate or enable derogations jo be customs union but by its external element. made from the rules concerning the estab The Commission's decision on 5 December lishment of the Common Market (Article 1960, which is still in force, was intended to 38 (2), Articles 39 to 46).

countries. The contrary argument is incom differences established by this regulation patible with the system of Article 10 (2) and between the factors in the calculation rela-

ting, first, to intra-Community. levies, and, markets. In this sector, therefore, trade is secondly, to levies imposed on imports carried on according to procedures em coming from third countries. 'Where dairy ployed for non-agricultural goods. products imported into a Member State Among the detailed rules for the application satisfy the conditions laid down for admis of the intra-Community trade scheme which sion to the intra-Community levy scheme are still governed by the internal rules of and, in praticular, where they satisfy one of each Member State are those governing the alternative conditions contained in evidence of the fact that products for which Article 9 (2) of the Treaty the application of the right to the preferential Community which has not been set aside by Regulation scheme is claimed satisfy the conditions No 13/64, admission to this scheme is an necessary to benefit therefrom.

cation of the preferential Community Belgian Cour de Cassation; it maintains scheme and, in particular, administrative that this problem is whether the decision of and customs procedures'. It was only after 17 July 1962 obliges the Member States to the period in which the events forming the refuse to allow the intra-Community levy subject-matter of the main action took place scheme to be applied where no certificate that the Council, acting under Article 235, DD4 exists to establish that the products in substituted the Community for the Member question satisfy the conditions required for States in the area in question (Regulation benefit therefrom. No 524/69/EEC of the Council of 18 March After stating that the abovementioned deci 1969, OJ L 77, p. 1). sion does not relate to the substance of the As regards agricultural products in partic right to the preferential Community scheme, ular, Articles 39 to 43 enable the Commun but only to the detailed rules for its applica ity to substitute its legislation to a large tion, the Commission proposes that a extent for that of the Member States. negative reply should be given to the ques However, as long as the Community has tions set out in the foregoing paragraph. not made use of these powers, the matters in In fact, no provision in that decision eх question continue to fall within the com pressly obliges Member States to adopt petence of the States, although they do not certificate DD4 as the only means of proof escape from the provisions of the Treaty, (contrary to the practice introduced sub including Article 38 (2), according to sequently by the above-mentioned Regula which, 'Save as otherwise provided in tion No 542/69), or leads to the decision's Articles 39 to 46, the rules laid down for the being interpreted in that way : establishment of the Common Market shall apply to agricultural products'. — the sole purpose of documentary eviden The Community has not so far formulated ce is normally to facilitate the establish its own legislation regarding customs pro

CRAEYNEST ν BELGIUM

trary, it is clear from the very wording of However, in order that certificate DD4 may the decision that the relevant depart­ be validly employed as the sole means of ments of the importing Member States proof the trader must be in a position to may require any further documentary acquire such a certificate. In this context, evidence to be submitted if they consider and in particular as regards the case of it necessary; fraudulent importation the question may arise whether the decision of 17 July 1962 — no argument may be drawn from the fact must not be interpreted as obliging Member that the decision provides for cases in States to allow the importer to show by which the Community levy scheme ap­ other means that the products in question plies without certificate DD4 having to satisfy the requirements for the intra- be produced. The decision only intended Community levy scheme. However, the to exclude certain imports for which this reply to this question would be in the formality was not justified. negative as such an interpretation would place a swindler, who voluntarily creates the (b) However, the decision of 17 July 1962 circumstances preventing him from obtain­ does not prohibit Member States from ing the certificate, in a more advantageous regarding certificate DD4 as the only position than other traders. Moreover, evidence of the applicability of the 'Com­ States which, by giving certificate DD4 the munity rules'. In fact, the promotion of character of an exclusive means of proof, trade between Member States depends on prevent a swindler from establishing by the widest possible use of documentary other means that the imported goods are evidence which is the same in every Member Community products, are not depriving State. Moreover, respect on the part of that party of his rights. On the contrary, it is traders for the formalities in question the swindler himself who deliberately gives depends to a great extent on the consequen­ up the means available to exercise those ces resulting from the absence of such rights. evidence.

4 As this Regulation did not specify the documents by which Community origin was to be established it is necessary to refer to the Commission's decision of 17 July 1962, 'setting up special methods of administrative cooperation for applying the intra-Community levies set up under the common agricultural policy', which replaces to this extent the Commission's decision of 5 December 1960 which is henceforward inapplicable to products which are subject to those levies.

5 Like the earlier measures adopted by the Commission under Article 10 (2) of the Treaty, the purpose of the decision of 17 July 1962 instituting the movement certificate DD4 was to contribute to the elimination of all barriers to trade between

between Member States by harmonizing the formalities to which trade within the Community is subject.

6 The adoption of this certificate arose out of methods of administrative cooperation which were already in force whose purpose, according to the third paragraph of the preamble to the decision of 17 July 1962, was to ensure that goods originating in the Member States should benefit from measures liberalizing intra-Community trade 'under exactly the same terms'.

7 It is therefore necessary for the use of certificate DD4 as a standard means of proof to be absolutely identical in all the Member States.

8 This requirement would be invalidated if national administrations were able to employ other means of proof, apart from the proof of origin which is established in the form of the said certificate.

13 In the absence of provisions to the contrary these considerations remain valid where it is necessary to establish the amount of levies evaded as a result of fraudu­ lent importation, even though the Community origin of the product could be established by means other than the said certificate.

14 The costs incurred by the Government of the Kingdom of Belgium and the Com­ mission of the European Communities, which have submitted observations to the 15 Court, are not recoverable and as these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Belgian Cour de Cassation the decision as to costs is a matter for that court.

On those grounds,

Upon reading the pleadings ; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the Commission of the European Com­ munities and of Mr Craeynest and Mr Vandewalle; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the EEC, especially Articles 10 (2) and 177 ; Having regard to Regulation No 13/64/EEC of the Council of 5 February 1964; Having regard to the decision of the Commission of 17 July 1962, especially Articles 1, 4 and 7; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities,

OPINION OF MR GAND — CASE 12/70

THE COURT

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL GAND DELIVERED ON 17 SEPTEMBER 1970<apnote>1</apnote>

Mr President, the rate laid down for imports coming from Members of the Court, third countries. Although the trial judge accepted the fact The request for a preliminary ruling with that the butter came from the Netherlands, which we have to deal today was submitted he emphasized that the import transaction by the Belgian Cour de Cassation. Mr had not been carried out under cover of a Craeynest and Mr Vandewalle, found guilty certificate DD4, a goods movement cer­ of complicity in the fraudulent importation tificate adopted in the Commission's deci­ from The Netherlands of 12 000 kilogram­ sion of 17 July 1962 for entitlement to mes of butter, were sentenced by the Belgian benefit from the intra-Community levy criminal courts to pay the State, which was scheme which is, as we know, more favour­ claiming damages in the action, the sum of able. Before the Cour de Cassation Mr 973,560 Bfrs by way of the amount of the Craeynest and Mr Vandewalle maintained levies evaded. This figure corresponded to that once it was found that the product came

1 — Translated from the French.