C-100/79

In Case 1 0 0 / 7 9

R E F E R E N C E to the Court under Article 177 of the E E C Treaty by the Bundesfinanzhof [Federal Finance Court] for a preliminary ruling in the action pending before that court between

HAUPTZOLLAMT [Principal Customs Office] ESSEN

and

INTERATALANTA HANDELSGESELLSCHAFT M B H & C o . K G , Frankfurt am M a i n 1,

I — Language of the Case: German.

The facts of the case, the course of private customs warehouse between the procedure and the observations September and November 1971 the submitted under Article 20 of the Statute customs office responsible to the Haupt- of the Court of Justice of the EEC may zollamt Essen charged, in addition to be summarized as follows: customs duties and ievies, monetary compensatory amounts (referred to as "Ausgleichsabgaben" in national law under the German implementing regu- I — Facts and written procedure lations of 14 May 1971) in accordance with the provisions of Regulation No 974/71 of the Council. The monetary Between 20 August and 24 September compensatory amounts were calculated 1971 the company Interatalanta at the rates in force at the time of each complied with the necessary formalities removal from the warehouse and were, for placing five consignments of frozen with one exception, higher than those in beef and veal from South America in its force when the goods were placed in the private customs warehouse. A private warehouse. customs warehouse ("offenes Zollager") within the meaning of the German legislation is one not locked with two That method of calculation was objected different keys ("ohne Zollmitverschluß") to by Interatalanta, which took the view as distinct from a double-locked customs that the monetary compensatory amount warehouse ("Zollverschlußlager"). When should be at the rate applying when the the goods were withdrawn from the goods entered the warehouse. Its

HAUPTZOLLAMT ESSEN v INTERATALANTA

"Was it ultra vires for the national legislature, under its power to charge Regarding the first sub-question the compensatory amounts on imports under Commission observes that the Article 1 of Regulation (EEC) No Community regulations applicable at the 974/71, to specify, in the case of goods time still did not contain any provisions which have been given customs clearance expressly concerning the determination for storage in a private customs of the date to be taken into account in warehouse ("offenes Zollager") the day calculating the monetary compensatory on which the goods are removed from amount. It was only in Regulation N o the private customs warehouse as the 648/73 (Official Journal L 64, p. 1) that relevant date for the application of the measures were adopted to that effect: rate of compensatory amounts?" Article 7 provides that in trade with third countries provisions concerning the Pursuant to Article 20 of the Protocol on granting of export refunds and the the Statute of the Court of Justice of the charging of customs duties and levies EEC the Commission, represented by its shall apply to monetary compensatory Legal Adviser, Peter Gilsdorf, acting as amounts; for trade between Member Agent, submitted written observations. States Article 8 states inter alia that the amount to be levied shall be that applicable on the day of the importation On hearing the report of the Judge- (Article 8 (1)) and that for the purpose Rapporteur and the views of the of determining the compensatory amount Advocate General the Court decided to to be levied the "date of importation" open the oral procedure without any shall be the date used for determining preparatory inquiry and to refer the case customs duties and levies (Article 8 (3)). to the First Chamber pursuant to Article In the Commission's view those 95 of the Rules of Procedure. provisions merely enact and clarify certain principles which were already applicable before the adoption of that regulation. II — S u m m a r y of w r i t t e n o b s e r - v a t i o n s s u b m i t t e d t o the Court T o determine the relevant date for the calculation of the monetary compensar tory amounts, which are continually The Commission observes that the facts varying, is of fundamental importance with which the case is concerned for the functioning of the system. If it occurred during the period when the were left to the Member States to fix the

relevant reference date, which might for Nevertheless if that wording is related to example be the day the contract is made other observations of the Court on the and not the day of importation, serious question the conclusion must be drawn distortions might result. In this case the that already at the time in question position would be the same if it were Community law contained the principle open to Member States to specify as the that in determining monetary com- reference date either that of placing in pensatory amounts it was right as the warehouse or that of removal regards imports to refer to the date of therefrom for in extreme cases those importation. dates might be separated by as much as five years. Regarding the second sub-question the Commission points out that the Council The Commission therefore thinks that it Directive No 69/74/EEC of 4 March is normal to take, as for levies, the date 1969 on the harmonization of provisions of importation, because the general laid down by law, regulation or economic circumstances are comparable administrative action relating to customs and because levies or refunds and warehousing procedure (Official Journal, monetary compensatory amounts are English Special Edition 1969 (I), p. 82) somewhat interdependent even according provides in Article 10 (1) that: to the system in force before 4 June 1973. Variations of the parity (or the central rate) of the dollar had reper- cussions on the amount of monetary ". . . when goods deposited in compensation, but at the same time it warehouses are cleared for home use the also gave rise to variations (in the customs duties, charges having opposite direction) in the levies (or equivalent effect and agricultural levies refunds) calculated on the basis of the chargeable on importation shall be world market prices expressed in dollars. collected on the basis of the rates or amount applicable on the date of removal from the warehouse and according to the nature of the goods, the The case-law of the court is to this value for customs purposes and the effect. Thus in the Judgment in Case quantity, as ascertained or accepted for 5/73 Balkan [1973] ECR 1091 the Court that purpose by the customs authorities." found that the calculation of the monetary compensatory amount was correct and thus approved the taking into account of the date of importation. That provision is based on the idea that The judgment in Case 94/77 Zerbone it is when the amount of the customs [1978] ECR 99 is even more significant duties and levies depends on the date at (cf. paragraph 18 where it is stated : "The which the products in question ultimately practice followed in all Member States of enter the domestic market of the taking the day of importation or expor- Community and come into competition tation as the reference date must be with domestic products that their regarded as lawful"). Considered in purpose is best achieved. That also isolation that wording, it is true, means applies to the charging of monetary only that the practice followed by the compensatory amounts. Member States, in the particular case Italy, is not contrary to Community law, but does not necessarily mean that The effect of the customs warehousing Community law requires that practice. procedure is precisely that no monetary

compensatory amount is levied during The Commission observes that since the the period of warehousing; on their directive expressly refers to all private removal from the warehouse the goods customs warehouses the above are to be put into free circulation or conclusion also applies to trade in goods made subject to another customs which pass through a private customs procedure or they may be re-exported warehouse. without any charge. In view of that uncertainty as to the destination of the The question as put by the Bundes- goods it is not correct to say as the finanzhof does not properly get to the root of the problem. Not only is the Bundesfinanzhof does that the goods national legislature not prevented from "are already participating in trade in the specifying the day of removal from the Community" by the simple fact of warehouse as the relevant date for crossing the frontier. determining the rate of the monetary Generally speaking there is no compensatory amounts but on the fundamental difference in relation to the contrary Community law requires it so law on levies. In both cases it is a to do. question of protecting a given price level In conclusion the Commission proposes as against imported goods. that the Court should give the following Since Regulation No 648/73 was answer: adopted the problem is expressly "Where goods were imported from a regulated. Since Article 7 of that regu- non-member State into the Community, lation refers as a whole to the customs placed in a private customs warehouse in provisions in the case of the application the Federal Republic during August and of the monetary compensatory amounts September 1971 and removed therefrom in trade with non-member States, there is between September and November 1971 no longer any doubt that Article 10 of and put into free circulation, the relevant Directive No 69/74/EEC also applies to date for application of the monetary monetary compensatory amounts. Article compensatory amounts under Regulation 8 (3) of Regulation (No 648/73 leads to (EEC) No 974/71 is the day of removal the same conclusion as regards trade from the warehouse." within the Community. The Commission is of the view that on this particular issue The Commission, represented by also all that has been done has been to N. Koch, acting as Agent, presented oral enact as express rules of law what was argument at the hearing on already applicable before the regulation 29 November 1979. in question was adopted, in other words The Advocate General delivered his the provisions are solely declaratory. opinion on 24 January 1980.

2 This question has arisen in proceedings concerned with the calculation of the monetary compensatory amounts on five consignments of frozen beef and veal from South America by the customs office responsible to the Haupt- zollamt Essen, the defendant in the main proceedings. The plaintiff in the main action, the German company Interatalanta, had obtained customs clearance for the goods between 20 August and 24 September 1971 for storage in its private customs warehouse. A private customs warehouse ("offenes Zollager") within the meaning of the German legislation is one which is not a double-locked customs warehouse ("ohne Zollmitverschluß") in contrast to a double-locked customs warehouse ("Zollverschlußlager"). The customs office calculated the monetary compensatory amount on the basis of the rates applicable (between September and November 1971) on each removal from the warehouse, which with one exception were higher than those applying when the goods were placed in the warehouse. Intera- talanta, which took the view that the monetary compensatory amount should be calculated on the basis of the rates applicable when the goods were placed in the warehouse, objected and on rejection of the objection brought the matter before the relevant Finanzgericht, which upheld the claim. The defendant in the main action appealed on a point of law against that judgment to the Bundesfinanzhof.

3 The Bundesfinanzhof put the question whether it was ultra vires for the national legislature, under its power to charge compensatory amounts on imports under Article 1 of Regulation No 974/71, to specify, in the case of goods which have been given customs clearance to storage in a private customs warehouse, the day on which the goods are removed from the private customs warehouse as the relevant date for the application of the rate of the compensatory amounts.

Costs

8 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. 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 Bundesfinanzhof, the decision on costs is a matter for that court.

On those grounds,

THE COURT

in answer to the question referred to it by the Bundesfinanzhof by order dated 8 May 1979, hereby rules:

It was not ultra vires for the national legislature to specify the day of removal from the warehouse as the reference date for the application, in accordance with the provisions of Regulation No 974/71, of the rate of monetary compensatory amounts in the case of the importation into the

Mr President, May 1971. For this purpose it applied the Members of the Court, amounts in force on the day of withdrawal from the warehouse. I — The present case concerns the field of application in point of time of the The plaintiff on the other hand took the monetary compensatory amounts and in view that the applicable rate should have particular the reference date for their been that in force when the meat entered application. The question is raised in so the warehouse and lodged an far as the matters at issue occurred at a administrative objection with the Haupt- time when the Community rules thereon zollamt [Principal Customs Office] were not fixed with the same precision as Essen. The objection was rejected and today. the plaintiff then brought an action before the relevant Finanzgericht Between 20 August and 24 September [Finance Court] and was successful. The 1971 the plaintiff in the main action, the Hauptzollamt thereupon appealed on a company Interatalanta, Frankfurt am point of law to the Bundesfinanzhof Main, complied with the necessary [Federal Finance Court]. In accordance formalities for placing consignments of with the first and third paragraphs of frozen beef and veal from South America Article 177 of the Treaty the Bundes- in a customs warehouse. When it finanzhof refers the following question withdrew the meat from the warehouse, of interpretation tò the Court for a pre- the customs office responsible levied liminary ruling: monetary compensatory amounts in accordance with the provisions of Regu- "Was it ultra vires for the national lation N o 974/71 of the Council of 12 legislature, under its power to charge