C-113/78

JUDGMENT OF THE COURT (SECOND CHAMBER) OF 21 FEBRUARY 1979<apnote>1</apnote>

N. G. J. Schouten B.V. v Hoofdproduktschap voor Akkerbouwprodukten (preliminary ruling requested by the College van Beroep voor het Bedrijfsleven)

"Day of importation"

Case 113/78

Agriculture — Common organization of the market — Cereals — Levy applicable on the day of importation — Concept of "day of importation"— Interpretation — Objective criteria — Events not attributable to importer — Effect — None

The "day of importation" within the A delay in the dispatch of goods due to meaning of Article 15 (1) of Regulation events not attributable to the importer No 120/67 of the Council of 13 June cannot affect the interpretation to be 1967 cannot be earlier than that on given to "day of importation" within the which the goods were brought to a place meaning of the above-mentioned designated by the competent national provision. authorities to enable them to make a real

and

Hoofdproduktschap voor Akkerbouwprodukten (Central Board for Agricultural Products),

on the interpretation of Article 15 (1) of Regulation No 120/67 of the Council of 13 June 1967 on the common organization of the market in cereals (Official Journal, English Special Edition 1967, p. 33)

THE COURT (Second Chamber)

composed of: Lord Mackenzie Stuart, President of Chamber, P. Pescatore and A. Touffait, Judges,

Advocate General: G. Reischl

Star chartered for the purpose by the Under Article 15 (1) of Regulation No appellant. The captain of that ship had 120/67 of the Council of 13 June 1967 received instructions from the appellant on the common organization of the to leave at 6 a.m. on 14 February 1975 at market in cereals (Official Journal, the latest so that the consignments would English Special Edition 1967, p. 33) the impon levy to be charged "shall be that applicable on the day of importation". In 1975 the appellant in the main action, N. G. J. Schouten B.V., imported into

SCHOUTEN HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUCTEN

At approximately 11.30 p.m. a customs official came on board. Before midnight the official accepted inter alia the so- called "general declaration" and affixed the words "inspected for entry" with the date stamped as 28 February 1975. The

JUDGMENT OF 21. 2. 1979 — CASE 113/78

proper interpretation of Article 15 (1) Statute of the Court of of Regulation No 120/67 that the day Justice of importation is to be or can be taken to be the day on which, in The appellant in the main action recalls, respect of goods transported by ship, with regard to the first question, that in both a general declaration is issued by its judgment in Case 113/75 (Frecassetti v the customs by virtue of which the Amministrazione delle Finanze dello Stato products are classified as goods which [1976] ECR 983) the Court ruled that have entered the country and are the day of importation referred to in subject to customs supervision and on particular in Article 15 of Regulation No which the customs declarations and other import documents have also

SCHOUTEN HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUCTEN

customs authorities boarded the ship and The first question should at least be customs declarations were made for the answered in the negative and the second ship and its cargo. question, which would then fall to be In the view of the appellant there exists answered, should be, taking account of the factors set out above, that in a no Netherlands or Community provision having the force of law which at that situation such as the present, the day of time provided that only the place where importation is or may be the day on which the so-called general customs a ship is berthed can be considered or declaration and the import declarations accepted or designated as the place for and other import documents are the customs declaration with regard to submitted to the customs authorities in its cargo. respect of the goods to be imported. In addition it is common ground that it The Netherlands Government takes the was by reason only of circumstances which cannot be ascribed to the Rona view that with regard to goods transported by ship the final berthing of Star that the ship could not berth at the vessel is the only time that can buoy No 3 in Europoort on 28 Februar)' 1975. objectively be taken as the time of arrival of the goods. It is on that criterion that In the light of the structure of the the national provisions relating to Community agricultural rules, the logic customs are based. of the customs procedure itself, the practical requirements of the customs administration, the interests of an importer of maize from non-member countries, the Netherlands legal provisions, the events relating to the Rona Star which occurred both before

on 1 March 1975 as was correctly stated of force majeure of the type found by the national court cannot alter the in the import licence. This may appear to be harsh and even to have an excessive fundamental principle whereby the day regard for formalities in the present case of arrival of the goods is to be regarded but, by definition, the application of an as the "day of importation". objective rule in order to assess whether The Commission is of the opinion with goods have arrived before or after regard to the first question that in order midnight is of neutral effect, sometimes to interpret Article 15 (1) of Regulation to the advantage and sometimes to the No 120/67 it is necessary first to disadvantage of the person concerned. establish that a Community concept is The Netherlands Government therefore involved which must be interpreted in accordance with Community law and not states in reply to the first question that in by reference to national legislation. no case can a day before the date on which the goods arrived be taken as the It emphasizes first the close link, which "day of importation". was moreover confirmed by the Court of Justice in the Frecassetti judgment, Turning nevertheless to the second between the aforesaid provision and the question, the Netherlands Government customs legislation which was states that the acceptance by the customs harmonized at Community level by the of the import declaration, which is Council Directive of 30 July 1968 decisive for determining the "day of (Official Journal, English Special Edition importation", has permanent legal 1968 (II), p. 416) on harmonization of consequences only after the goods have the provisions laid down by law, regu- reached the place of unloading, that is to lation or administrative action relating say the place where the import to: 1. Customs treatment of goods formalities are completed. The entering the customs territory of the acceptance of the general declaration at Community; 2. Temporary storage of an earlier time, which is done by such goods. The Commission refers in different officials from those responsible particular to Article 2 of that directive for checking, is quite independent of the which provides that: other operation. Moreover that acceptance serves a completely different urpose namely that of placing the goods under a general customs procedure under which they are brought to the place of unloading so that customs exam- ination of the goods may be carried out. In any event it cannot be concluded from that that the checking has already started or could have already started at that time. Thus the general declaration is irrelevant for the purpose of determining the day of importation.

"1. All goods entering the customs objective manner are indispensable to territory of the Community or ensure adequate legal certainty. coming from a free zone situated in The Commission therefore takes the the territory of the Community shall view that the reply should be given to the be subject to customs control. first question that in no case can the day 2. They shall immediately be conveyed, of importation within the meaning of by the route designated by the Article 15 (1) of Regulation No 120/67 competent national authorities, to a be taken to be a day before that on customs office or other place which the products in question are designated by those authorities and brought to a customs office or to any under the supervision of the customs other place designated by and under the authorities". supervision of the customs authorities. The presence of the goods in such a It is clear from those provisions that the place is intended to enable the customs goods to be imponed must necessarily be authorities to carry out certain checks on physically present in order to be the products. It is not a question of law imported into the customs territory of but a question of fact. The Commission the Community. Customs supervision in can accept the point of view advocated accordance with those provisions can be by the Netherlands Government effective only if the customs authorities whereby, as regards goods which are are in a position to inspect the goods. brought in by ship, the customs auth- Similarly the submission of the orities must require the ship to be fully declaration in order to make goods berthed. The ship can of course be which are not or have not immediately moored to a dock or to a buoy away been placed under a customs procedure from the dock while waiting to obtain a subject to the responsibility of the place to unload. customs presupposes the presence of The Commission observes that the first those goods. It must therefore be part of the second question suggests that concluded that in no case can the "day in the present case the goods in question of importation" be understood as being a were nevertheless subject to a certain day before that when the goods are in customs supervision. While the fact present. acceptance by the customs of the general In the Frecassetti judgment the Court of declaration which, according to the Justice also took as its basis the physical Netherlands rules, serves for making a declaration for clearance into circulation, presence of the goods as a condition for the possibility of importing them. has the effect of placing the goods under a customs procedure, such acceptance by If the purpose of Article 15 (1) of the regulation is sought it would appear, on the one hand, that the supervision by the customs authorities of the goods in question and their responsibility in that regard require the physical presence of the goods. On the other hand that provision seeks to ensure the more or less precise determination, on the basis of objective criteria, of the time delimiting the day of importation which is the decisive factor in fixing the levy. The precise fixing of that time and the possibility of determining it in an

Céréales v Hauptzollamt Hamburg-Jonas opinion at the hearing on 25 January ([1978] ECR 1675). 1979.

Decision

1 By decision of 2 May 1978 the College van Beroep voor het Bedrijfsleven referred to the Court in pursuance of Article 177 of the EEC Treaty two questions relating to the interpretation of Article 15 (1) of Regulation No 120/67 of the Council of 13 June 1967 on the common organization of the market in cereals (Official Journal, English Special Edition 1967, p. 33) under which the impon levy to be charged "shall be that applicable on the day of importation".

2 These questions were raised in the context of an action relating to the fixing of the rate of levy charged on a consignment of maize and a consignment of

SCHOUTEN HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUCTEN

gluten feed pellets from the United States of America imported into the port of Rotterdam in a ship chartered by the applicant in the main action.

JUDGMENT OF 20. 2. 1979 — CASE 113/78

6 The national court, to which the appellant appealed against a decision by the respondent rejecting its request that 28 February 1975 should be considered for the purposes of the levy as being the "day of importation", within the meaning of Article 15 (1) of Regulation No 120/67, referred to the Court of Justice for a preliminary ruling the following questions :

"1. Does it follow from a proper interpretation of Article 15 of Regulation No 120/67 that in no circumstances can a day before the date on which the products in question are brought to a place which is accepted by the customs department charged with receiving the import declarations and the other import documents be regarded as the 'day of importation' within the meaning of Article 15 (1)?

2. If that question must be answered in the negative does it follow from a proper interpretation of Article 15 (1) of Regulation No 120/67 that the 'day of importation' is to be or can be taken to be the day on which, in respect of goods transported by ship, both a general declaration is issued by the customs by virtue of which the products are classified as goods which have entered the country and are subject to customs supervision and on which the customs declarations and other import documents have also been accepted by the customs in a situation in which the products were not brought to the place referred to in Question 1 exclusively and solely because that place was not available for extraneous reasons which cannot be ascribed to the importer or its agents?"

However, that acceptance cannot take place as long as the goods, even if they have already been subjected to a general customs procedure, have not arrived at the place prescribed by the customs for the process of checking and clearance.

9 It was in this sense that Article 2 of Council Directive No 68/312/EEC of 30

July 1968 on harmonization of the provisions laid down by law, regulation or administrative action relating to: 1. Customs treatment of goods entering the customs territory of the Community; 2. Temporary storage of such goods, (Official Journal, English Special Edition 1968 (II) p. 416) prescribed in paragraph (1) that "all goods entering the customs territory of the Community ... shall be subject to customs control", and in paragraph (2) that "they shall immediately be conveyed, by the route designated by the competent national authorities, to a customs office or other place designated by those authorities and under the supervision of the customs authorities".

10 Thus the answer to be given to the first question must be that the "day of imponation" within the meaning of Article 15 (1) of Regulation No 120/67 cannot be earlier than that on which the goods were brought to a place designated by the competent national authorities to enable them to make a real and effective customs inspection.

11 The second question asks whether "the day of importation" within the meaning of the above-mentioned article may be interpreted as being the date of the general declaration if the goods, for reasons which cannot be ascribed to the importer or its agents, could not be brought to the place prescribed by the customs authorities.

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.

On those grounds,

THE COURT,

in answer to the questions referred to it by the College van Beroep voor het Bedrijfsleven by decision of 2 May 1978, hereby rules:

1. The "day of importation" within the meaning of Article 15 (1) of Regulation No 120/67 of the Council of 13 June 1967 cannot be earlier than that on which the goods were brought to a place designated by the competent national authorities to enable them to make a real and effective customs inspection of the goods.

2. Events not attributable to the importer cannot affect the interpre- tation to be given to "day of importation" within the meaning of that provision.