C-179/78

JUDGMENT OF 28. 3. 1979 — CASE 179/78

itself, could not be the subject of a without distinction criminal penalties prohibition or restriction, it would in provided in respect of false particular be disproportionate for the declarations made in order to effect importing Member State to apply prohibited imports.

In Case 179/78

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance, Montpellier, for a preliminary ruling in the proceedings pending before that court between

THE PROCUREUR DE LA REPUBLIQUE [Public Prosecutor] at the said Tribunal,

plaintiff, and

defendants,

on the interpretation of Articles 30 and 115 of the EEC Treaty,

THE COURT (First Chamber)

composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner and A. O'Keeffe, Judges,

Advocate General: J.-P. Warner Registrar: J. A. Pompe, Deputy Registrar,

gives the following

The facts of the case, the course of the Since the Rivoira associates were procedure and the observations convicted in their absence, they appealed submitted under Article 20 of the against this judgment. Protocol on the Statue of the Court of Meanwhile, Mr Cayrol accepted a Justice of the EEC may be summarized proposal from the French customs auth­ as follows: orities to settle for an amount of FF 175 000. He then applied to the Tribunale di Saluzzo for a warrant for I — Facts and procedure attachment against the assets of the Rivoira concern with a view to In December 1970 and December 1971, compensation for the damage. It was Mr Leonce Cayrol imported into France during these proceedings that the Court various consignments of table grapes of of Justice delivered its judgment of Spanish origin which were dispatched 30 November 1977 in Case 52/77 Cayrol from Italy (where the grapes had been v Rivoira [1977] ECR 2261. put into free circulation) by the firm The Tribunal de Grande Instance, Giovanni Rivoira & Figli. The grapes Montpellier, to which had Rivoira bore the Italian export mark and were appealed against the judgment of accompanied by the certificate of the 26 January 1976, referred to the Court Istituto Nazionale per il Commercio of Justice for a preliminary ruling a Estero (I.C.E.) certifying that the goods question asking: were in conformity with the quality 1. Whether, according to the provisions standards and stating that they were of of Community law applicable in 1970 Italian origin. and 1971, the fact that France had Following a check carried out by the lawfully fixed a bilateral quota for French customs authorities on 9 August importations of Spanish grapes into 1972, Mr Cayrol and Messrs Rivoira France between 1 July and were charged with having imported 31 December of each of those years gave to France the right to prohibit, prohibited goods (since the quota laid in respect of the same periods, the down by France for the importation of importation of like Spanish grapes grapes from Spain had been exhausted) from Italy where they had been in by means of a false declaration of origin free circulation, without France and on the basis of false or inaccurate documents. having previously requested and obtained authorization from the In its judgment on that charge delivered Commission of the EEC in Brussels

2. If Question 1 is answered in the exclude Spanish grapes from Community negative, whether the fact that the treatment and to check the origin of that Spanish grapes imported into France product in trade within the Community. from Italy during the above­ It emphasizes that goods in free circu­ mentioned periods were declared to lation enjoy Community treatment in be Italian entitles France to consider any Member State. In the present case, such declaration as an infringement of the various consignments of grapes were French customs legislation attracting travelling under cover of Certificates the criminal penalties provided for by DD1 or T2. According to Rivoira, those the Code des Douanes [customs code] certificates bear witness to the lawful in respect of false declarations made admission of the goods into free circu­ in order to effect prohibited imports. lation within the meaning of Article 9 (2) of the Treaty (judgment of 15 September The judgment making the reference, 1976 in Case 41/76 Donckerwolcke dated 5 June 1978, was lodged at the [1976] 2 ECR 1921). Court Registry on 25 August 1978. As to Question 2, Rivoira argues that Pursuant to Article 20 of the Protocol on there is a difference between customs the Statute of the Court of Justice of the rules and any other measure of customs EEC, written observations were supervision. The latter are of a purely submitted by the defendants in the main administrative nature and cannot include action, the French Government and the penalties such as seizure of the goods or Commission of the European Com­ any pecuniary penalty fixed according to munities. the value of the goods (paragraphs 37 After hearing the report of the Judge- and 38 of the decision in Case 52/77 Rapporteur and the views of the cited above). Among such administrative Advocate General, the Court decided to contraventions are those concerning the open the oral procedure without any declaration of Community origin. It preparatory inquiry. follows from Case 52/77 (Cayrol v By an order of 20 December 1978, the Rivoira cited above) that an inaccurate Court decided to assign the case to the statement of origin cannot be regarded First Chamber pursuant to Article 95 (1) as an infringement of a rule of customs law. of its Rules of Procedure. Consequently, such a statement also cannot be punished under the penal rules II — Summary of the written laid down for cases of infringement of observations submitted to customs law. the Court It also emerges from the case-law of the Court that there is discrimination Rivoira submits that Question 1 finds an inasmuch as in the present case the inac­ answer in the principles laid down by the curate statement of origin — as a quality judgment in Case 52/77 Cayrol v Rivoira [1977] ECR 2261. It emerges from that judgment (paragraphs 24 to 26 of the decision) that the basic condition for the application of Article 115 of the Treaty was fulfilled at the time, and that the French Republic neither applied for nor obtained the authorization referred to in the second sentence of the first paragraph of Article 115. That author­ ization would only have enabled it to

control — does not attract penalties in The French Government submits that if respect of all products marketed within such a manoeuvre is proved, it should be the State concerned but under the strict subject to criminal penalties irrespective provisions of the Code des Douanes of the imposition of an administrative attracts penalties only in respect of penalty applying to a mere mistake in the imponed products (Case 53/76 Bouhelier statement of origin. [1977] ECR 197). The Commission submits that Question 1 According to the provisions of Regu­ should be given a negative answer, as is lations Nos 58/62 (Official Journal, already apparent from the judgment in Case 52/77 cited above. English Special Edition 1959-1962, p. 204) and 158/66 (Journal Officiel No This conclusion is confirmed by the 192, 27 October 1966, p. 3282/66), express terms of Article 1 (1) of Regu­ lation No 2513/69 of the Council of 9 statements relating to the origin of the December 1969 on the co-ordination goods were required in order to protect and standardization of the treatment the interests of consumers; they are not a customs matter (paragraph 48 to 50 of accorded by each Member State to the decision in Case 52/77 cited above). imports of fruit and vegetables from non- member countries (Journal Officiel No L The French Government confirms first of 318, p. 6), from which it emerges that all that it is true that for 1970 and 1971 the power left to the Member States by France had not availed itself of the oppor­ that provision to apply certain tunity afforded by Article 115 of the quantitative restrictions is limited to Treaty to take necessary protective imports of the products concerned from measures with the agreement of the non-member countries. Commission. The scope of the principle of free It considers that it was entitled to ask movement of goods in relation to importers for the origin of table grapes products coming from non-member countries which are in free circulation in imported into France under the conditions laid down by the case-law of a Member State was clearly defined by the Court (Case 41/76 Donckerwolcke the judgment of 15 December 1976 in and Case 52/72 Cayrol v Rivoira cited Case 41/76 Donckerwolcke [1976] 2 ECR 1921 and by the judgment of 30 above). Statement of the origin of November 1977 in Case 52/77 Cayrol v products was intended precisely to Rivoira [1977] ECR 2261. enable the French authorities to keep a watch on impon trends in order to be Finally, in 1970 and 1971 a Member able to avail itself of the procedure State could not prohibit the introduction provided for in Article 115 of the Treaty into its territory of table grapes of should the need arise. Spanish origin coming from another Member State where they were in free Consequently, an inaccurate statement of circulation, without having been duly such origin made with a clearly authorized to do so by the Commission fraudulent purpose may be subject to a under Article 115 of the Treaty. penalty. The Court did not deny that such penalties were possible so long as they were not disproportionate having regard to the purely administrative nature of the contravention.

The answer to Question 2 is clear from a The false declarations to which it refers mere reading of the words used by the are punished as such.<apnote>1</p national court. A criminal conviction Article 426 (3) makes into a criminal under a national legislative provision offence the contravention which such a which has been held to be contrary to false declaration constitutes because of Community law is also incompatible with the aggravating factor of the that law (judgment of 16 February 1968 contravention's having been committed in Case 88/77 Minister for Fisheries v "by means of false, inaccurate, Schonenberg and Others [1978] ECR incomplete or inapplicable invoices, certi­ ficates or any other documents". 473). Thus, in the Commission's submission, However, having regard to the according to the French Code des provisions of the French Code des Douanes, Article 426 (3) may be applied Douanes on the basis of which the even where the goods concerned do not national court has to give judgment, it is form the subject-matter of any measure possible to see the question as having a prohibiting or restricting importation. wider scope. In the present case, the problem is to what extent the application of that In this connexion, the Commission puts provision and the criminal convictions to forward the following arguments. which it can lead are compatible with the rules of the Treaty in the case of goods Through extensive use of the technique in free circulation moving between of assimilation or legal fictions or Member States. presumptions, the French Code des The Commission argues that the answer Douanes frequently confers a parti­ is to be found in the judgments in the cularly broad ambit upon the concepts cases of Donckerwolcke and Cayrol v which it employs. This is true in Rivoira cited above. It emerges from this particular of the offence of importing or case-law that the provisions of the exporting prohibited goods without a Treaty on the free movement of goods declaration or of false declaration of preclude the possibility of a mistaken prohibited goods. Not only does the contravention refer to a concept of prohibited goods which is itself very broad owing to Article 38 of the Code des Douanes, but in extreme cases it can also consist in the declaration of goods which are not prohibited, in particular in the case envisaged in Article 426 (3) of the Code des Douanes which is one of the legal bases of the judgment of the Tribunal de Grande Instance of 26 January 1976. Unlike Article 426 (2) concerning "false declarations whose purpose or effect is to evade application of the prohibition measures", Article 426 1 — Thus the Cour de Cassation (Criminal Chamber 10 November 1970; Dalloz 1971, p. 509, Note J. Mazard) (3) relates to false declarations held that Article 426 (3) in no way postulates that the false declaration should have had the aim or effect of irrespective of their purpose or of their evading the payment of duties, taxes or charges. It also effect or of the measures concerning the applies in cases involving a false declaration or falsely increased declarations of the value of exported goods goods which form their subject-matter. (Cass. Crim. 3 November 1972, D. 1973, Somm. 11).

declaration of the first origin of goods in absence of an authorization duly free circulation introduced into the given by the Commission under territory of a Member State from Article 115 of the Treaty. another Member State giving grounds 2. A criminal conviction for for the application of a penalty of the contravention of a prohibition on kind which Article 414 of the French imports which is contrary to Article Code des Douanes lays down for false 30 of the Treaty is itself incompatible declarations deemed to be imports or with that Article. exports of prohibited goods without a declaration. That penalty (the seizure of A mistaken declaration concerning the the goods and a fine equal to twice the first origin of goods in free circulation value of the goods) cannot be justified inasmuch as it is intended to enforce a coming from another Member State cannot give grounds for the application prohibition or restriction on importation of a criminal penalty of the kind which which ex hypothesi is inapplicable to the Article 141 of the French Code des goods under consideration in the absence of an authorization duly given under Douanes lays down for false declarations Article 115 of the Treaty. It is moreover deemed to be imports or exports of patently disproportionate having regard prohibited goods without a declaration, to the needs of the State as regards since such a penalty is patently dispro­ knowledge of the movement of goods. portionate having regard to what is necessary for the purposes of enabling a On the basis of the foregoing Member State to obtain reasonably considerations, the Commission suggests complete and accurate information on that the question referred to the Court should be answered as follows: the movement of goods falling within specific measures of commercial policy. 1. Although the Member States could — having regard to the combined provisions of Article 1 of Regulation No 2513/69 and of Articles 1 and 11 III — Oral procedure of Annex I to the Agreement between At the hearing on 22 February 1979 the the EEC and Spain — continue to defendant and the intervener in the main apply to table grapes of Spanish origin action, represented by Giovanni Maria during the part of the year between 1 Ubertazzi and Fausto Capelli of the July and 31 December quantitative Milan Bar, and the Commission of the restrictions in existence prior to Regu­ European Communities, represented by lation No 2513/69, those provisions did not allow them to extend the its Agent Jean Amphoux, submitted oral argument. application of such restrictions to imports of table grapes of Spanish The Advocate General delivered his origin from another State in which opinion at the hearing on 15 March they were in free circulation in the 1979.

5 At the time of the importation the bilateral quota fixed by France for grapes imported from Spain had been exhausted.

6 Following a check carried out by the French customs authorities the Rivoira associates were charged with having imported prohibited goods by means of a false declaration of origin and on the basis of false or inaccurate documents.

7 Having been convicted and ordered to pay fines in their absence, the Rivoira associates appealed, which led the national court to ask the following prelim­ inary questions:

"1. Whether, according to the provisions of Community law applicable in 1970 and 1971, the fact that France had lawfully fixed a bilateral quota for importations of Spanish grapes into France between 1 July and 31 December of each of those years gave to France the right to prohibit, in

PROCUREUR DE LA RÉPUBLIQUE v RIVOIRA

respect of the same periods, the importation of like Spanish grapes from Italy where they had been in free circulation, without France having pre­ viously requested and obtained authorization from the Commission of the EEC in Brussels under Article 115 of the Treaty.

JUDGMENT OF 28. 3. 1979 — CASE 179/78

11 Only Article 115 of the Treaty gives the Commission the power to authorize the Member States to take protective measures, inter alia in the form of dero­ gations from the principle of free movement of goods, against products orig­ inating in non-member countries and put into free circulation in one of the Member States.

12 Except where the substantive and procedural conditions laid down in Article 115 are fulfilled, a Member State cannot make the introduction into its territory of goods put into free circulation in another Member State subject to the requirement of an import licence.

13 It follows that the answer must be that in 1970 and 1971 a Member State did not have the right to prohibit the importation of table grapes of Spanish origin but coming from another Member State in which that product was in free circulation without previously having requested and obtained authoriz­ ation from the Commission in accordance with Article 115 of the Treaty.

Question 2

14 In so far as this question is to be understood as a supplement to Question 1, the answer must be that a criminal penalty attaching to a measure of restriction applied to the importation into one Member State of products put into free circulation in another Member State is as incompatible with Community law as that restriction itself.

20 Therefore the answer must be that, although the fact that Spanish grapes imported into France from Italy have been declared as being of Italian origin may in appropriate cases give grounds for the application of the criminal penalties provided against false declarations, it would be disproportionate to apply without distinction the criminal penalties provided in respect of false declarations made in order to effect prohibited imports.

Costs

21 The costs incurred by the Commission and the French Government, which have submitted observations to the Court, are not recoverable.

22 As these 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 179/78

On those grounds,

A. Van Houtte, J. Mertens de Wilmars Registrar President of the First Chamber

OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED ON 15 MARCH 1979

My Lords, the Tribunal de Grande Instance of Montpellier. It is a sequel to Case 52/77 This case comes to the Court by way of Cayrol v Rivoira [1977] ECR 2261. Your a reference for a preliminary ruling by Lordships are familiar with the facts of