C-113/75

2. Customs duty to be applied to goods declared for internal consumption — Rate — Determination — Date — Recommendation of the Commissie of 25 May 1962 — Application to levies — Not permissible

1. The 'day of importation' referred to in 2. The Recommendation of the Article 17 of Regulation No 19 and in Commission of 25 May 1962 Article 15 of Regulation No concerning the date to be taken into 120/67/EEC is the day on which the account in determining the rate of import declaration for the goods is customs duty to be applied to goods accepted by the customs authorities. declared for internal consumption cannot apply to levies.

In Case 113/75,

Reference to the Court pursuant to Article 177 to the EEC Treaty by the Tribunale di Genova for a preliminary ruling in the proceedings pending before that court between

GIORDANO FRECASSETTI,

AMMINISTRAZIONE DELLE FINANZE DELLO STATO,

Advocate-General: J.P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

The order for reference and the written cereals (OJ English Special Edition 1967, observations submitted under Article 20 p. 33) also provides that: of the Protocol on the Statute of the Court of Justice of the EEC may be The levy to be charged shall be that summarized as follows: applicable on the day of importation.'

I — Facts and procedure B — 1. From May 1967 to March 1968 the plaintiff in the main action A — 1. The first paragraph of Article imported into Italy various consignments 17 of Regulation No 19 of the Council of of maize. In respect of these 4 April 1962 on the progressive consignments it submitted declarations establishment of the common which were accepted by the customs authorities of Genoa. organization of the markets in cereals (JO of 20. 4. 1962, p. 933) provides that: As the amounts involved were The amount of the intra-Community or considerable customs clearance was third country levy to be charged shall be carried out in stages over a period of that applicable on the day of time.

the rate of levy in force on the date of (b) In a case where a consignment of each request where this was more goods is cleared through customs favourable than that in force on the date in several batches, whether 'day of of acceptance of the declaration of importation' is to be taken as importation or of the submission of a meaning the day on which each prior request to remove the goods. individual batch of goods is cleared through customs or the Following a check the defendant in the day on which the first or the last main action requested the importer to batch of that consignment of the pay the sum of Lit. 2 710 190, which did goods is cleared through customs? not include the costs of the difference in (c) In a case where changes occur in the levies. the rate of the levy between the date on which the import declaration is submitted or Although this is not specified in the received and the date on which order it subsequently appeared that the the goods are cleared through Genoa customs authorities had thought customs, whether the levy which that the levy in. force on the date when is the lower of those in force on each quantity of the goods was removed the two above mentioned dates is and cleared through customs was to be applied or even that in force applicable if it was more favourable to on an intermediate date between the importer than that in force on the the other two dates, which may be date of the acceptance of the import even lower? declaration. 2. The interpretation of the Rec­ ommendation of the EEC 2. The applicant appealed against the Commission, addressed to Member notice requiring payment and by an States on 25 May 1962 and published order of 31 October 1975 the Tribunale in the Official Journal of the di Genoa stayed the proceedings and European Communities of 29 June pursuant to Article 177 of the EEC 1962 so as to answer the question Treaty asked the Court of Justice to give whether the Recommendation, which a preliminary ruling on the questions is concerned with customs duties, can relating to: also apply on the subject of '1. The interpretation of Article 17 of Community levies.' EEC Regulation No 19 of 4 April 1962 and of Article 15 of Regulation 3. The order from the Tribunale di No 120/67/EEC of 13 June 1967, in Genova was received at the Court so far as they provide that The levy Registry on 25 November 1975. to be charged shall be that applicable on the day of importation', in order In accordance with Article 20 of the to determine: Protocol on the Statute of the Court of (a) Whether 'day of importation' is to Justice of the EEC written observations be taken as meaning the day on were submitted by the Commission of which the import declaration for the European Communities on 27 the goods is submitted by the January 1976, by the plaintiff in the importer or received by the main action on 6 February 1976, and by Customs or whether it is to be the Government of the Italian Republic taken as meaning the day on on 12 February 1976. which the goods are placed fully at the disposal of the importer Upon hearing the report of the after completion of customs Judge-Rapporteur and the views of the clearance formalities in respect of Advocate-General the Court decided not the goods? to hold a preparatory inquiry.

II — Written observations sub according to which 'the rate of levy mitted to the Court applicable must … be that in force on the date on which the goods are A — 1. The plaintiff in the main irrevocably put into free circulation' by action recalls that in order to avoid Article 2 of Directive No 74 of 4 March disparities in treatment in the course of 1969, by Articles 8 and 15 of Regulation customs clearance the Recommendation No 1373 of 10 July 1970 and by the of the Commission of 25 May 1962 judgment of 15 May 1974 (Case 186/73, (Journal Officiel of 29 June 1962, p.

This phrase has a precise entailed the final introduction of the legal meaning and signifies the products subject to the levy into the acceptance by the customs authorities of customs territory of a Member State and the import declaration. The customs duty therefore into the internal market of the applicable is therefore that in force at the Community. Consequently the levy in time of this acceptance. force at this date must be applied since the goods are finally released into free However, where the customs duty circulation by virtue of the acceptance of decreases before the customs authorities the import declaration. give permission for the goods to be

Schleswig-Holsteinische landwirtschaft liche Hauptgenossenschaft eGmbH v 3. In fact the main action is concerned Hauptzollamt Itzehoe [1971] ECR) not with two but with three levies in

force on three different dates. However the latter case the difference between the latter problem only concerns the whether or not the adaptation of the interpretation of national rules and can national system to the Community rule only be resolved by the national court. is mandatory is of no importance as to the relevance of the question. In the case of the 'staggered' clearance through customs of bulk goods such as 2. Question 1 (a) and (c) and 2. cereals there is often a certain lapse of The solution in the recommendation of time between the request for removal the Commission for the determination of and the date of actual customs clearance. the amount of the customs duties As, in the case in the main action, the levy applicable on the day of the request payable was adopted because it was considered that the date to be taken into for removal was lower than that applicable either on the day of the account could not be prior to the declaration of importation or the day of moment when the importer actual customs clearance the importer unambiguously demonstrates his sought and obtained the application of intention to release the goods to the consumer market.

B — 1. The Commission points out registers it or, so to speak, accepts it. that for the first time the Court is asked Nevertheless the recommendation did to give a preliminary ruling on the take account of the considerations interpretation of a recommendation. In concerning the economic function of the view of the difference in the functions of customs duty, but solely in cases of Articles 173 and 177 it is not surprising reduction of the amount, in order not to that the Treaty permits the Court to give penalize an importer who, at the a preliminary ruling on the interpretation moment of the declaration, relied on the and the validity of measures which, application of a fixed level of duty.

In the original Member States of the

Proposal for a Council directive on the inconceivable that the importer should harmonization of procedures for the determine the amount of the levy. release of goods for free circulation (OJ Moreover by adopting the day on which C 14 of 15. 2. 1974, p. 45, Article 12), for removal of the goods is authorized, one agricultural levies on the other hand the would run up against the difficulty of Council regulations which established, being unable to achieve any certain them specified on each occasion that the indication of the date and the fact that amount applicable was that in force on this moment would be subsequent to the day of importation. Moreover in the that when the levy must be calculated or judgment of the Court in Case 35/71 even paid. (supra) it is stated that. The only remaining possibility is 'the concept 'day of importation', which therefore to take account of this point in is conclusive for the purposes of the time only in conjunction with the (prior) application of a levy scheme must have point in time of the acceptance of the declaration for release on to the market the same meaning in all Member States, since otherwise there is a danger that which amounts to adopting the solution different rates of levy would be applied to employed in the Recommendation of 25 goods which are in the same situation May 1962 with the possibility for the economically at the same date and the importer to benefit from the levy in force introduction of which into the territory on the day on which removal is authorized where this is lower. This of the Member States has comparable effects on the market in agricultural solution makes it possible to reconcile products.' smoothly the purpose of the agricultural rules and the intrinsic logic of the Although the Commission's recommen­ customs procedure, the practical re­ dation of 25 May 1962 may only strictly quirements of the customs refer to agricultural levies it may also be administration and the interest of the of value for the interpretation of the importers. Of course, as has already been concept of 'day of importation' contained said on the subject of the in the agricultural regulations. recommendation, it means that it is impossible to take account of the levy, The interpretation of this concept by the which may perhaps be lower, in force on Court in the judgment delivered in Case an intermediate date between the two 35/71 is so clear that it requires no abovementioned times. commentary. On the one hand this interpretation is If the criteria adopted were transposed to justified by the common economic basis the problem raised by the main action, of duties and levies which excludes the

application of different dates according declaration which establishes that the to whether protection is achieved by goods are intended for consumption in means of a duty or by a levy. On the the Community territory. On the basis of other hand it accords with the solution the identical criterion applied to customs given by the Court to the analogous duties, the importer is nevertheless problem raised with regard to import entitled to ask, in respect of each certificates (judgment in Case 186/73, quantity examined and cleared through supra). customs, for the application of the levy, which may be lower, in force on the date

declared. The customs rules of the by interpreting 'customs clearance' as different Member States in fact follow 'removal' and therefore becomes superfluous if the replies proposed by the this interpretation which is by Commission with regard to the implication confirmed by the judgment preceding questions are adopted, for of 15 May 1974 in Case 186/73 and that these replies place no significance on the of 28 May 1974 in Case 3/74 (Einfuhr- time of removal (whether in whole or in und Vorratsstelle für Getreide und

This is evident both single time but in instalments. from Community rules themselves and Even in the case of clearance through in particular from the agreements customs by successive clearance concluded with associated countries and certificates, the levy is applicable from the Common Customs Tariff according to the rate in force on the date contained in the Annex to Regulation of acceptance of the final customs import No 950/68/EEC of 28 June 1968 (OJ

English Special Edition 1968 (1) p. 275) 3. On the other hand there must in any from Regulation (EEC) No 3000 of 17 case be excluded the possibility of taking November 1975 (OJ L 304 of 24. 11. account of the levies in force during the 1975) which lay down uniform period between the date of acceptance of preliminary provisions and which also the final import declaration and the date expressly refer to the levy rules and to of the clearance of the goods through the abovementioned draft directive of 21 customs.

It in force on the date of the actual customs cannot be argued that the fact that the clearance of the imported goods question has been ruled inadmissible according to the rules and procedures requires an assessment of the importance which at the present moment still differ of the question as the fact that it is in the various Member States, that is to impossible to interpret recommendations say, when, after the customs examination excludes the very need to rule on this and the payments of the duties, he may particular point.

FRECASSETTI v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

Law

1 By order of 31 October 1975, which was received at the Court Registry on 25 November 1975, the Tribunale di Genova referred, pursuant to Article 177 of the EEC Treaty, questions for a preliminary ruling on the interpretation of the concept 'day of importation' for the purposes of determining the levy applicable to cereals within the meaning of Article 17 of Regulation No 19 of the Council of 4 April 1962 (JO of 20. 4. 1962, p. 933) and Article 15 of Regulation No 120/67/EEC of the Council of 13 June 1967 (OJ English Special Edition 1967, p. 33).

2 These questions were raised in the course of a case relating to the fixing of the rates of levy for a maize importer who obtained customs clearance for his goods by instalments spread over a period of time.

Since the Community levies were subject to fluctuation during the period in question, the plaintiff in the main action sought and obtained in its requests for customs clearance the application of the rate of levy in force on the date of each of these requests when this was more favourable than that in force on the date of the acceptance of the import declaration or the submission of a prior request for removal of the goods.

After carrying out a check the national administration, the defendant in the main action, requested the importer to pay an additional sum by way of levy.

In the second question the Court is asked to interpret the Recommendation of the Commission addressed to Member States on 25 May 1962 and published in the Journal Officiel of 29 June 1962, in order to establish whether the Recommendation, which is concerned with customs duties, can also apply in the matter of Community levies.

4 The authority responsible for the application of the levies, whether this be the customs administration or the competent intervention body, cannot delay the determination of the rate of levy beyond the date prescribed by the provisions of the two abovementioned regulations.

This date is the day on which the customs department accepted the declaration whereby the importer shows his intention to release the goods to the market.

This acceptance may not take place until the goods have reached the place prescribed by the customs for the process of customs clearance and until the documents which must be produced for their release to the market have been submitted.

5 The aim of the agricultural levy is to compensate for the difference between the price on the world market and the highest Community price.

It is primarily intended to protect and stabilize the Community market, in particular by preventing price fluctuations on the world market from affecting prices within the Community.

9 If, on the other hand, the Commission had wished to indicate that it applies to levies, it would have specified this since the recommendation was adopted more than one month after the publication of Regulation No 19 on the progressive establishment of a common organization of the markets in cereals, Article 17 of which provides that 'the levy to be charged shall be that applicable on the day of importation'.

Costs

10 The costs incurred by the Republic of Italy and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable.

Since the proceedings are, 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, costs are a matter for that court.

OPINION OF MR WARNER —CASE 113/75

On those grounds,

Delivered in open court in Luxembourg on 15 June 1976.

A. Van Houtte R. Lecourt

Registrar President

OPINION OF MR ADVOCATE-GENERAL WARNER DELIVERED ON 26 MAY 1976

My Lords, gradual establishment of a common organization of the market in cereals As Your Lordships remember, the system entered into force on 1 July 1962. It of levies on imports instituted by continued in force until 1 July 1967 Council Regulation No 19 on the when it was replaced by the new system