C-186/73

JUDGMENT OF 15. S. 1974 — CASE 186/73

3. For the purposes of determining the circulation does not require that the date on which, within the meaning of customs procedure should be finally Article 15 (1) (a) of Regulation No concluded in favour of the declarant. 1373/70, the import obligation under Before Article 15 (1) of Regulation the licence is deemed to have been No 1373/70 can apply, it is essential fulfilled, acceptance by the customs that the goods which, pursuant to the authorities, within the meaning of provisions of Article 8 (2) (a), have Article 15 (5) (a), of the document by been attributed on the licence, should which the declarant states his have, in fact, been put into free intention to put the goods in free circulation.

In Case 186/73

Reference to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht (Administrative Court) of Frankfurt-on-Main, for a preliminary ruling in the action pending before that Court between

Norddeutsches VIEH-UND Fleischkontor GMBH of Hamburg

and

FLEISCHKONTOR v EINFUHR-UND VORRATSSTELLE SCHLACHTVIEH

JUDGMENT

Facts

The judgment making the reference and Regulation No 1373/70 provides that: the written observations submitted under (i) Copy No 1 of the licence shall be Article 20 of the EEC Statute of the submitted to the office responsible Court may be summarized as follows: for completing import customs formalities (Article 8 2) (a));

JUDGMENT OF 15. 5. 1974 — CASE 186/73

Nor does it embrace 'tacit approval' of II — Written observations the application as the outcome of a submitted before the particular series of acts on the part of Court the customs office prior to release of the goods for removal. This is because, A — Observations by the Firm of firstly, the customs office does not lose Norddeutsches Vieh-und Fleiscb- its right to refuse the application until it kontor releases the product; secondly, because this formula courts all the risks of

1. The company points out that the uncertainty, especially as regards refusal of the application for customs reaching a decision one way or the other clearance was based exclusively on the within the time laid down.

rules relating to veterinary inspection. From the practical point of view, Compared with those of other Member therefore, 'acceptance' must be taken to

FLEISCHKONTOR v EINFUHR-UND VORRATSSTELLE SCHLACHTVIEH

interpretation. The company bases this doubt about the meaning to be given to view on the second of the two Article 15 (1). alternative versions of the provision, viz. The company rejects the contention that that the products can be put into free Article 15 (5) (a) does no more than circulation without such a statement of identify the moment when importation is intent, because in that event the effected, if it is effected at all. The completion of customs formalities has statement in the fourth recital of the clearly been associated with a preamble to the Regulation that 'the two straightforward matter of fact. The concepts of importation and exportation company also relies on the English should be interpreted in a uniform version of the provision, where there is manner' demonstrates that neither reference to a 'document by which the Article 15 (1) nor Article 15 (5) (a) declarant states his intention to .

Regulation. It recalls that the Regulation licence in order that the obligation to standardized the rules for applying the import could be regarded as having been import licence system and recapitulates carried out. The need for a uniform its main features. In this context, and interpretation of the expressions according to the fourth recital of the 'importation' and 'exportation' arises preamble, the purpose of the Regulation only in connexion with the system of was that 'the two concepts of lodging security, so, for this particular importation and exportation should be purpose, the answer to the question how interpreted in a uniform manner'. and when the import obligation is In the company s view, the fact that the fulfilled is a decisive factor. licence authorizes and obliges the titular Nor, in the company's view, does Article holder, and not third parties, especially 15 (3) (a) conflict with the interpretation the customs office, to import is a for which it contends. If the obligation decisive factor in the interpretation of to import is carried out by actual receipt Article 15 (1) and Article 15 (5) (a). The of the application for clearance by the inevitable conclusion to be drawn from customs office, the office must, in this is that fulfilment of the obligation to accordance with Article 8 (2), make the import is wholly dependent on action by attribution and endorsement on Copy the titular holder and that the No 1, even though, in the event, the requirements for the fulfilment of the product is not put into free circulation. obligation to import are necessarily conditioned by what the licensee is, in (d) The company maintains that its fact and in law, able to do. 'Acceptance' interpretation is confirmed beyond within the meaning of Article 15 (5) (a) further doubt by the object of the can therefore mean nothing else than the Regulation, which is to ensure maximum

simplicity and therewith legal certainty. physical receipt of a customs application 'Acceptance' must, therefore, be taken to in due form would suffice. mean an action of such simplicity that it It takes the view that, if this can be recognized at any time. interpretation is upheld, the Court The company also draws attention to should, in its decision, also lay down the the delay, lasting up to five years, which conditions to be satisfied before the could ensue if fulfilment of the import customs application is considered to be obligation were related to the conclusion in order. of customs procedure, including all In the company s opinion, it is administrative and legal processes set in inconceivable that the question whether motion against the customs office. the application had been duly made should, as far as carrying out the (e) The company maintains that its obligation to import is concerned, be interpretation would ensure uniform answered in terms of national law. application of Community law in all Member States, which would not be the The company also refers to the situation if 'acceptance' were made Judgment of the Court of 6 June 1972 synonymous with approval of the (Schlüter/Hauptzollamt Hamburg (Rec.

involved in this case cannot be under Community law. The company dissociated from the need to ensure that states that, as Community law does not the authorities are as closely informed as make provision for any quantitative possible about prejected transactions. restrictions to prevent risk to life or The company maintains, inter alia, that health, it is not possible on the basis of if this objective had been the decisive Community law to make the right and factor it would have been reasonable to the obligation to import which are the regard the obligation to import as legal outcome of an import licence fulfilled only on completion of the subject to compliance with such customs 'procedure whereby the goods quantitative restrictions.

(a). (b) If the Court has to interpret Article For all these reasons, the company 15 (5) (a) as meaning that the product submits that 'acceptance' within the may not be challenged by the customs meaning of Article 15 (5) (a) must be office, the company asks the Court to interpreted to mean physical receipt by declare that careful consideration must the customs office. be given to the question whether in this 3.(a) The company maintains that, case the obligation to import has been even if the statement of intention within extinguished by force majeure. the meaning of Article 15 (5) (a) were In the company s view, there must be a required to be made in due form, presumption of force majeure in

circumstances where, as in the present Several considerations argue in favour of case, the product meets the conditions this interpretation. laid down for the licence and the other Firstly, it seems clear, that, in the conditions required under Community absence of any corresponding basis in law. fact, mere completion of customs formalities is insufficient to fulfil the B — Observations of the Commission obligation to import. This basis, i.e., the goods being imported, must be there; it 1. The Commission maintains that, in is in any case the rule that they must be interpreting the provisions of Regulation 'submitted' to the customs adminis No 1373/70, account must be taken, tration. Just as it implicitly assumes that first, of the basic rules laid down in the goods have in fact been submitted, Regulations on the organization of the Article 15 rests on a similar assumption market — the present Regulation cannot that the goods have in fact been change the basic concepts of importation imported. Like that of submission, the and exportation — and, second, of the concept of giving authority for collection general principles of the law on customs (or release) is inherent in all legislative procedure. measures governing customs procedures.

from it. The concept of 'acceptance' the obligation to import imposed by the within the meaning of Article 15 (5) (a) licence, it would be enough for the must be given its formal meaning i.e., importer to submit customs clearance that 'receipt' of the customs application goods which were rotten through and determines when the obligation arising through and manifestly in contravention from the licence is fulfilled. This does of the rules on hygiene. not mean, however, that the obligation The Commission also recalls that the imposed by the licence has been fulfilled object of import licences is to enable a regardless of the fact that the procedure record to be kept of actual imports but has not been 'concluded' and that not of the movement of goods held up at consequently, the goods have not actually customs barriers.

JUDGMENT OF 15. 5.1974 — CASE 186/73

If that its interpretation would ensure that the date to be taken into account were the various national rules laying down established on the basis of different the way in which goods are cleared criteria, the outcome could be, for through customs would not, for example, that the levy would be fixed nationals operating in the market, for an 'importation date' on which, produce different answers according to because of the provisions of the licence which Member State was importing. system, it was no longer possible for In a reference to the seventh recital of any importation to take place. the preamble to the Regulation and to The Commission rejects the suggestion Article 15 (2) (b), the Commission that the conclusions it has drawn could, emphasizes that, as the purpose of the as regards the forfeiture of security, system of lodging security is, like that of have, for the importer, consequences the licence system, in essence the same which in practice were intolerable or for both imports and exports, Article 15 unfair.

purposes. It draws special attention to a makes it possible to deal with any proposal for a Council Directive on the obvious injustice which is revealed only harmonization of procedures for the in the course of customs procedure. release of goods for free circulation (OJ 5. Finally, the Commission goes into C 14 of 15 February 1974). the concept of 'receipt' of the customs The Commission also goes into the declaration. It maintains that this does Judgment of the Court of 15 December not mean mere physical receipt of the 1971 (Schleswig-Holsteinische Haupt- declaration by the customs official.

FLEISCHKONTOR v EINFUHR-UND VORRATSSTELLE SCHLACHTVIEH

a stamp). This is clearly set out in veterinary objections raised after goods Articles 7 and 8 of the proposal for a have been put into free circulation may Council Directive, mentioned above, make it necessary to re-export or to which also indicates that acceptance destroy the meat. In that case, even takes place in the form prescribed in according to the Commission, the each Member State (Article 8 (1)). Again, obligation to import would have been in no country do the existing provisions fulfilled. The company is at a loss to of the law governing customs procedure understand why the security is forfeit treat mere 'physical' receipt as sufficient. when the objections are raised at the In any case, all the formalities prescribed time of importation. for lodging the declaration must have The company rejects the Commission's been completed: the application must be correctly filled in; it must be lodged with argument that an importer could a competent customs office; it must be endeavour to avoid forfeit of the security accompanied by all the requisite by producing for clearance goods which he knew in advance could not in fact be documents for importation.

origin. procedure, the oral observations of the The Commission is slightly amending Norddeutsches Vieh-und Fleischkontor, the reply which it proposed that the represented by Maître P. Wendt, and of Court should give to the question. It no the Commission, represented by its legal adviser, Peter Gilsdorf, were made at the longer believes it to be necessary or desirable that the Court should in its hearing on 4 April 1974.

JUDGMENT OF 15. J. 1974 — CASE 186/73

favour. The effect of this interpretation for this provision to apply, the goods is, however, confined to defining the covered by the licence must have in fact date on which the import obligation been put in free circulation.' imposed by the licence is deemed to have been fulfilled within the meaning of The Advocate-General delivered his Article 15 (1) (a) of the said Regulation; opinion at the hearing on 7 May 1974.

Law

i By order of 20 November 1973, received at the Court on 5 December, the Verwaltungsgericht of Frankfurt-on-Main referred to the Court under Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of the word 'accept' as it appears in Article 15 (5) (a) of Regulation No 1373/70 of the EEC Commission of 10 July 1970 (OJ L 158, p. 1) on common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products subject to a single price system.

2 The question arises out of a dispute between an importer of frozen beef and veal and the German authorities over release of the security given to guarantee the importation authorized by an import licence valid for a given period.

Before the validity of the certificate expired, the importer submitted a quantity of meat coming from abroad for medical inspection but importation could not be effected because of failure to satisfy the requirements of German legislation governing veterinary examination of meat of foreign origin.

It follows from this that, as the order by which the customs authorities conclude the clearance procedure and authorize release of the goods for free circulation may be subject to considerations which vary from one Member State to the other, such as, for example, those arising from different patterns of legislation governing medical inspection of meat, this cannot be treated as the sole deciding factor.

5 The aim of the provisions of Article 15 (1) and 15 (5) is to define the date from which the titular holder of an import licence shall be deemed to have fulfilled his obligation to make use of the licence during the period of its validity and thus to have satisfied the essential condition for release of the security.

The guarantee which the system of lodging security seeks to achieve does not require the customs procedure to have been concluded in favour of the declarant but enables the obligation to be considered as having been fulfilled at an earlier date, such as the date on which the customs authorities received the document by which the declarant states his intention to put the products in question into free circulation, subject, however, to the condition that the goods are actually put into free circulation, even though this may be at a later date.

Article 15 (3) in fact provides that the proof on which release of the security depends shall be furnished by production of Copy No 1 of the licence on which the quantity of goods acutally imported has been attributed.

JUDGMENT OF 15. 5. 1974 — CASE 186/73

6 It should be borne in mind, however, that the public interest, which requires as accurate a forecast as possible of import trends in each Member State and justifies the deposit of security against the grant of authorization to import, must be reconciled with the necessity of not hampering trade between States by too rigid obligations, a necessity which also derives from the public interest.

On those grounds,

THE COURT

in answer to the question referred to it by the Verwaltungsgericht of Frank­ furt-on-Main by order of that court dated 20 November 1973 hereby rules:

FLEISCHKONTOR v EINFUHR-UND VORRATSSTELLE SCHLACHTVIEH

1. For the purposes of determining the date on which the obligation to import pursuant to the licence is deemed to have been fulfilled, within the meaning of Article 15 (1) (a) of Regulation No 1373/70, acceptance by the customs authorities, within the meaning of Article 15 (5) (a), of the document by which the declarant states his intention to put the goods into free circulation does not require that the customs procedure should be finally concluded in favour of the declarant.

2. Before Article 15 (1) can apply, it is essential that the goods which, pursuant to the provisions of the second subparagraph of Article 8 (2), have been attributed on the licence, shall have, in fact, been put into free circulation.

DELIVERED ON 30 APRIL 1974 1

Mr President, regulations to issue of import licences Members of the Court, granted for a fixed period of time and constituting both obligation and Introduction authority to import a given quantity of the product concerned. Importation into the Community of The obligation to import the goods agricultural products covered by during the period of validity of the common organizations of the markets is, licence is underwritten by the lodging of as you know, subject under the basic security.

1 — Translated from the French.