C-30/75

The requirement that the submission of A Member State which has not adopted certificate DD 4 is alone acceptable as substantive measures to implement the evidence of fulfilment of the conditions decision introducing the duty to submit which entitle a trader to pay only the certificate DD 4 cannot claim that traders intra-Community levy cannot be applied have failed to fulfil the duties involved in against a trader who satisfies the formal that decision but must provisionally requirements which are still in force in accept such other means of proof as are the importing State when the goods cross appropriate to the fulfilment of the the frontier. formal requirements in force.

In Case 30/75

Reference to the Court of Justice under Article 177 of the EEC Treaty by the Corte Suprema di Cassazione for a preliminary ruling in the action pending before that court between

SpA Unil-It., of Milan and

Amministrazione Finanzaria dello Stato (State Finance Department),

on the interpretation of the Commission Decision of 17 July 1962 (OJ No 76 of 24. 8. 1962, p. 2140) and of certain provisions of Regulation No 13/64/EEC

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The order making the reference and the However, by a decision of the written observations submitted in Commission of 17 July 1962 (OJ No 76 accordance with Article 20 of the of 24. 8. 1962, p. 2140) for agricultural Protocol on the Statute of the Court of products subject to intra-Community Justice of the EEC may be summarized levies under the common agricultural as follows: policy, certificate DD 4 was introduced and is the appropriate document in proof for the application of intra-Community I — Facts and procedure levies. The date from which a DD 4 certificate had to be presented for these The right to benefit from the products depended in each case on the intra-Community scheme applicable to date of the entry into force for the goods involved in trade between Member product concerned of a system of States is subject, under a decision of the intra-Community levies. For milk and Commission of 5 December 1960 (OJ milk products, including cheese, this date No 4 of 20.1.1961, p. 29), to the was 1 November 1964, pursuant to submission of a movement certificate Article 32 of Regulation No 13/64/EEC DD 1 or DD 3, depending on the of the Council of 5 February 1964 (OJ particular case. Certificate DD 1 is used No 34 of 27. 2. 1964, p. 549) on the when goods are transported directly from progressive establishment of a common the exporting Member State, and organization of the market in milk and certificate DD 3 is the appropriate milk products, as amended by Article 1 document in proof in other cases. (2) of Regulation No 82/64/EEC of the

Council of 30 June 1964 (OJ No 105 of prescribed in Article 24 [sic] of the 1 July 1964, p. 1626). regulation and subsequent amendments, and regardless of As from 1 November 1964 the Italian internal rules promulgated on the company SpA Van den Bergh, which has subject by individual States, since been merged with SpA Unil-It., the involved for entitlement to benefit appellant in the main action, imported from Community treatment a duty from the Federal Republic of Germany to use movement certificate DD 4 and from the Netherlands consignments for which provision is made under of cheese sent during the month of the first enactment, as would October 1964 accompanied by accord with the finding of the certificates DD 1 and DD 3, which were Court of Justice in its judgment of apparently the only certificates which the 22 October 1970 in Case 12/70? authorities of the two exporting States (Craeynest and Vandewalle) were able to issue at the time. (a) 2.

State? 90 115 000. The appellant brought an (b) If the answer to the foregoing action for the repayment of the amount questions is in the affirmative, and in paid before the Tribunale of Milan which view of paragraphs (1) and (2) of gave judgment in its favour. The Corte Article 2 of the aforementioned d'Appello of Milan allowed the appeal Decision of 17 July 1962 and note II submitted by the Finance Department on the attached form referring to the and rejected the application of Unil-It. last paragraph of the preamble, does

ruling: 5 December 1960, or also 'in the (a) 1. Do the provisions laid down, other cases' which are the subject of pursuant to Articles 9 and 10 of the different certificate, DD 3, for the Treaty, in the Decision of the which provision is also made in the EEC Commission of 17 July 1962 Decision of 5 December 1960 (in the in conjunction with those laid second subparagraph of paragraph (1) down in Regulation No of Article 2)? 13/64/EEC of the Council of 5 February 1964, mean that the The order making the reference of 22 direct application in each Member November 1974 was filed at the Court State of the levy system established Registry on 18 March 1975. by the second of the abovecited enactments in milk and milk Upon hearing the report of the products has, since the initial date Judge-Rapporteur and the views of the

II — Written observations sub­ In answer to the second question, the mitted pursuant to Article Commission maintains that the 20 of the Protocol on the obligation to produce certificate DD 4 Statute of the Court of applies equally to the case where the date Justice of the entry into force of Regulation No 13/64 falls between the date when the A — Observations of the Commission goods were exported from one Member State and the date when they were After examining the Community rules imported into another Member State. concerning the use of certificate DD 1 Regulation No 13/64, which came into for direct importation from one Member force on 1 November 1964, introduced, State to another and certificate DD 3 in on a temporary basis, a common other cases (Commission Decision of 5 organization of the market for milk December 1960) and the introduction of products involving intra-Community certificate DD 4 for agricultural products levies which were, however, in order to subject to intra-Community levies maintain Community preference, fixed at (Commission Decision of 17 July 1962) a level lower than that of levies for the Commission goes on to point out imports coming from third countries. It that Regulation No 13/64 establishes a was therefore essential that as from 1 common organization of the market in November 1964 it could be established milk and milk products based in with certainty whether a product could particular on the imposition of benefit from the preferential intra- intra-Community levies which are lower, Community treatment introduced by in order to ensure Community Regulation No 13/64. Under the preference, than those imposed on Decision of 17 July 1962, in particular products coming from third countries. Article 3 (2), certificate DD 4 alone is the document in proof for the application of With regard to the first question, the the intra-Community levy system. The Commission cites the judgment of the importing company could moreover have Court of Justice of 22 October 1970 relied upon the second subparagraph of (Case 12/70, Craeynest and Vandewalle Article 3 (1) of that decision which v Belgium, [1970] ECR 905) and deduces provides, with the particular aim of that for the products in question, the protecting legitimate private interests, obligation to use certificate DD 4 that certificate DD 4 may also be exclusively as from 1 November 1964 obtained after the goods to which it arises on the one hand from Regulation relates have been exported 'if due to an No 13/64, which was directly applicable involuntary error or omission, it is not as from 1 November 1964, and, on the produced when they are exported'. other hand, from the Commission Decision of 17 July 1962 which is With regard to the third question, the binding in all its aspects independently Commission observes that certificate

intra-Community system. It is contrary to the spirit of the B — Observations of the appellant in Community agreements to apply the the main action rules laid down for imports coming from third countries to imports of products Unil, the appellant in the main action, accompanied by certificates showing contests the reference made by the Corte beyond all doubt their Community Suprema di Cassazione of Italy to the origin. judgment of the Court of Justice of 22 October 1970 (Case 12/70, Craeynest and Examination of the second question Vandewalle v Belgium). That case emphasizes the unlawful nature of the involved fraudulent imports giving rise to customs authorities' refusal to accord possible criminal sanctions against those Community treatment to the import in responsible, while the present case question. The goods were accompanied involves imports of milk products, which by a certificate DD 1 and by a certificate undeniably come from Common Market DD 3. This shows, in accordance with countries, in accordance with the Article 2 of the Commission Decision of legislation in force. 5 December 1960, that the goods, in any case those covered by the certificate Regulation No 13/64 solely established, DD 3, were not transported 'directly', as from 1 November 1964, a system of within the meaning of paragraph (2) of levies for milk products but did not issue the abovementioned Article 2, from the any rule binding upon the Member exporting Member State to the importing States regarding the procedure and Member State. detailed rules to be followed in checking the Community origin of imported Article 2(1) of the Decision of 17 July products. Moreover, the Commission 1962 provides that 'the goods movement Decision of 17 July 1962 did not place certificate form DD 4 may be used only Member States under an obligation to if the goods to which it relates are carried adopt certificate DD 4 as the sole means directly from the exporting Member State of proving the Community origin of into the importing Member State'.

Paragraph (2) of that article defines the the Italian Government, shows that there concept of 'direct' transport in terms was no need to correct the system. identical to those used in Article 2 of the Decision of 5 December 1960 in respect Moreover, any doubtful cases, particularly of certificate DD 1. It must therefore the present case, could have been follow that certificate DD 4 replaces resolved at the request of the appellant certificate DD 1 solely for those by applying the second subparagraph of agricultural products subject to Article 3 (1) of the Decision of 17 July intra-Community levies which are 1962 whereby, in cases of involuntary imported directly. Certificate DD 3 omission, certificate DD 4 can in remains applicable to indirect transport. exceptional cases be certified after exportation of the goods to which it C — Observations of the Italian relates. Government With regarded to the third question the Italian Government believes that the With regard to the first question the Italian Government observes that in its Decision of 17 July 1962 excludes goods judgment of 22 October 1970 (Case subject to agricultural levies from the 12/70, Craeynest and Vandewalle v sphere of application of the Decision of Belgium) the Court has already given a 5 December 1960 and subjects them to stricter rules for their admission to the sufficient reply. It follows from that judgment that the right to benefit from preferential intra-Community system. the preferential intra-Community system However, that new system excludes is subject to the production of certificate indirect transport. This exclusion, which is also in force in sectors other than that DD 4 and that Member States may not allow proof of Community origin or of of milk products, is a direct consequence the fact that the goods are in free both of the objective description of goods circulation to be made by means other covered by a common organization of the market and of the nature of that than the production of that certificate. A consequence of the requirement of common organization of the market, uniformity regarding the method of including intra-Community levies based proving Community origin in the various on a direct comparison between prices Member States is that the absence of charged in the exporting Member State national legislation ensuring the use of and in the importing Member State certificate DD 4 can only result in refusal respectively. to accord preferential Community The Commission, represented by its treatment. Examining the second Agent, Mr Maestripieri, the Italian question the Italian Government points Government, represented by its Agent, out that the Commission could, under Mr Zagari, and the appellant in the main the final subparagraph of Article 32 of action, represented by Mr Rossi, Regulation No 13/64, have adopted presented oral argument at the hearing temporary measures by means of the on 23 September 1975. Management Committee procedure. The Advocate-General delivered his The Commisison did not make use of opinion at the hearing on 15 October this possibility which, in the opinion of 1975.

Certificate DD 4 is drawn up in such a way as to enable the existence of the conditions to which application of the intra-Community levy system is subject to be verified, in particular, the fact that the agricultural products concerned are actually produced within the Community.

4 Regulation No 13/64 of the Council on the progressive establishment of a common organization of the market in milk and milk products, as amended by Regulation No 82/64 provides, in relation to the products to which it refers, including cheese, for the introduction of a double system of levies which came into force on 1 November 1964 applying first, to trade with third countries and, secondly, to intra-Community trade.

JUDGMENT OF 18. 11. 1975 — CASE 30/75

As from that date, for the purpose of applying the system of intra-Community agricultural levies, under Articles 1 and 4 of the decision of 17 July 1962 movement certificate DD 4 had to be produced with a period of one month from that date of being certified by the customs office of the exporting Member State, at the customs office of the importing Member State where the goods were presented.

5 The action before the Corte Suprema di Cassazione concerns a company which imported into Italy after 1 November 1964 consignments of cheese from the Federal Republic of Germany and the Netherlands which were sent during October 1964 and accompanied in part by certificates DD 1 (where the goods were transported directly) and in part by certificates DD 3 (where the transport was regarded as indirect).

6 The Unil company maintains that it was unable to obtain the abovementioned certificate DD 4 either from the German authorities or from

10 Approximately 18 months after the importation, the Italian authorities claimed from the appellant in the main action the levies applying to trade with third countries on the ground that the importation had not been carried out under cover of certificate DD 4.

The first question

11 In the first question the Court is asked whether as a result of the decision of 17 July 1962, in conjunction with Regulation No 13/64 of the Council of 5 February 1964, the direct application in each Member State of the levy system established by the said Regulation No 13/64 has, since 1 November 1964 and regardless of internal rules promulgated on the subject by individual States, involved for entitlement to benefit from Community treatment a duty to use movement certificate DD 4.

12 Article 12 of Regulation No 13/64 prohibits, with effect from 1 November 1964, in trade between the Member States, the levy of any customs duty or charge having equivalent effect on the agricultural products referred to therein.

For such intra-Community trade it provides, during the transitional period, for a system of levies to be fixed, pursuant to Article 8, by the Member States in accordance with the criteria established by this regulation.

13 As regards intra-Community trade this regulation gives the traders concerned the right to be subject to a lower levy than that imposed on imports of the same products from third countries.

17 Of course, the second subparagraph of Article 3 (2) of the decision of 17 July 1962 provides that 'as an exception, the movement certificate DD 4 may also be certified after the goods to which it relates have been exported, if as the result of an involuntary error or omission, it is not produced when they are exported'.

However, this provision refers to situations other than those in which the Member State concerned had not yet laid down the duty to produce certificate DD 4.

18 The reply to be given to the first question must, therefore, be that the decision of 17 July 1962, in conjunction with Regulation No 13/64 as amended by Regulation No 82/64, entitled the trader to pay the intra-Community levy alone, provided that he proves, by producing certificate DD 4, that he has fulfilled the conditions necessary to benefit therefrom, but that the Member State which has not adopted substantive measures to implement this decision cannot claim that traders have failed to fulfil the obligations which it involves and must, provisionally, allow other means of proof to be used which are appropriate to the fulfilment of these conditions.

19 The reply to the first question renders it unnecessary to deal with the others.

Costs

20 The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the 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 national court, the decision as to costs is a matter for that court.

Pescatore Sørensen Mackenzie Stuart O'Keeffe

Delivered in open court in Luxembourg on 18 November 1975.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 15 OCTOBER 1975 1

Mr President, Under Article 9 (2) of the EEC Treaty, Members of the Court, the provisions of Chapter 1, Section 1, and of Chapter 2 of Title I of Part II of The following points are important for the Treaty (that is to say, the provisions an understanding of the reference for a relating to the elimination of customs preliminary ruling before us today. duties and to the elimination of