C-196/81
ECLI:EU:C:1982:208
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J U D G M E N T O F T H E C O U R T (FIRST CHAMBER) 27 MAY 1982 '
Proweditorie Marittime S. Giacomo S.p.A. v Amministrazione delle Finanze dello Stato — Dogana di Genova (reference for a preliminary ruling from the Tribunale di Genova)
(Expon levies on sugar — Date on which they become payable)
(Case 196/81)
Agriculture — Common organization of markets — Sugar — Export levy — Payable at the latest at the time of completion of the customs formalities — Collection at a later date — Forfeiture of the debt — None (Regulation (EEC) No 1076/72 of the Commission, Art. 3 (2))
The expression "payable at the latest" at debt is determined, and consequently the time of completion of the customs becomes payable, before the day of formalities, contained in Article 3 (2) of completion of the customs formalities. Regulation (EEC) No 1C76/72 of the Accordingly, the calculation and actual Commission laying down detailed rules collection of the levy, that is to say- for applying expon levies on sugar, must payment thereof, may be made at a later be understood not as involving forfeiture stage. of rights but rather as applying where the
In Case 196/81
REFERENCE to the Court under Article 177 of the EEC Treatv by the First Civil Section of the Tribunale di Genova [District Court. Genoa] for a preliminary ruling in the action pending before that court between
PROWEDITORIE MARITTIME S. GIACOMO S.P.A., Milan,
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JUDGMENT OF 27. 5. 1982 — CASE 196/81
and
AMMINISTRAZIONE DELLE FINANZE DELLO STATO — DOGANA DI GENOVA
[State Finance Administration — Genoa Customs Office]
on the interpretation of Article 3 (2) of Regulation (EEC) No 1076/72 of the Commission of 25 May 1972 laying down detailed rules for applving expon levies on sugar and amending Regulation (EEC) No 2637/70 (Official Journal, English Special Edition 1972 (II), p. 470),
THE COURT (First Chamber)
composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koop- mans, Judges,
Advocate General: G. Reischl Registrar: J. A. Pompe, Deputy Registrar, gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of ation of the market in sugar (Official the procedure and the observations Journal, English Special Edition 1967, p. submitted under Anicie 2C of the 304), as amended bv Regulation f EEC) Protocol on the Statute of the Court of N o 607/72 of thr Council of 23 March Justice of the EEC may be summarized 1972 (Official Journal, English Special as follows: Edition 1972 (I), p. 236). provides that:
"If the cif price for white sugar or raw sugar is higher than the threshold price, I — Facts and written procedure a levy equal to the difference between those prices shall be charged on expons of the product in question. I. Article 16 (I) of Regulation No ICD9/67/EEC of the Council of 18 Where the Communitv or any region December 196" on the common organiz- thereof can no longer be supplied with
PROV. MARITTIME S. GIACOMO v DOGANA DI GENOVA
sugar at-prices within the limit of the The levies are those applicable on the threshold price, provision may be made day on which the customs formalities are for charging a special levy on expons of completed, which is defined by Anicie 15 the product in question. Where the (5) of Regulation (EEC) No 1373/70 of provisions of this subparagraph apply, the Commission of 10 July 197C on those of the preceding subparagraph common detailed rules for the shall not apply" (The distinction between application of the system of impon and a levy and a special lew was abolished expon licences and advance fixing ceni- by Regulation No 333C/74). ficates for agricultural products subject to a single price svstem (Official Journal, English Special Edition 1970 (II), p. 439) "Save as otherwise privided by the as being the day Council in accordance with the procedure laid down in paragraph (3), the levy or the special lew to be charged, " . . . on which the customs authorities as appropriate, shall be that applicable on accept the document by which the • the day of exportation". declarant states his intention to expon the products in question . . . or to place the products under customs control ...". The purpose of those levies was to ensure that the Communiry was sufficiently supplied with sugar by discouraging exports at times at which 2. Proweditorie Marittime S. Giacomo increases in world prices rendered such S.p.A., a ships' chandler for liners exports attractive. belonging to the Italia shipping company, which has its registered office in Milan, exponed to Switzerland Regulation No 1076/72 of the between August and December 1974, Commission, referred to above, lays consignments of refined sugar totalling down detailed rules for applying the 261 033 kg. No levy was required at the export levies. Article 3 of that regulation time of exponation of the sugar. provides that: In January and February 1975, the "(1) Save in cases where the special Genoa customs authorities resolved to export lew is determined by seek payment of an amount totalling LIT invitation to tender, the levies 151 038 885 as the lew payable under referred to in Article 1 shall be Regulation No 1C09/67 which it had those applicable on the day on omitted to demand as a result of an error which the customs formalities at the time of completion of the customs referred to in the second sub- formalities. paragraph of Anicie S (2) (b) of Regulation (EEC) No 1373/70 are completed. There is disagreement between the pames in the main action concerning the origin of the contested goods and the (2) The levies shall be collected bv the country from which they came. The Member State on whose territory exponing company maintains that the the formalities referred to in goods, which were stored in its private paragraph (1) are completed. They bonded warehouse at Genoa-Rivarolo, shall be payable at the latest at the came from various sources and were time of completion of those placed there as "products from abroad". formalities". It claims that u obtained authorization
JUDGMENT OF 27. 5. 1982 — CASE 196/81
from the customs authorities to put the bar precluding the competent authorities goods in free circulation. The of a Member State from subsequently Amministrazione delle Finanze dello demanding payment of a special levy Stato [hereinafter referred to as "the which had not been collected as a result Administration"] contends that the of an error at the time of completion of contested sugar originated in and came the customs formalities. from the Community.
3. Taking the view that a question The exporting company challenged the concerning the interpretation of a demands for payment made by the provision of Community law had arisen, customs authorities before the Tribunalr the Tribunale di Genova, by order of 23 di Genova on the ground that the claims May 1981 and in accordance with Article of the Administration were unlawful and 177 of the EEC Treaty, decided to stay relied especially on Article 3 (2) of Regu- the proceedings and to refer to the Court lation N o 1076/72, which expressly of Justice for a preliminary ruling a defines the time at which the lev)· is question on the interpretation of Anicie payable as being "at the latest at the time 3 (2) of Regulation No 1076/72, which of completion of [the customs] provides that the levies referred to in formalities"; accordingly, in its opinion, Anicie 1 "shall be payable at the latest at failure to exercise that right must be the time of completion of those assimilated to a forfeiture of the right to formalities" (that is to say the customs demand the lew. The exporting formalities). The question is as follows: company therefore argues that since the specific request for authorization to expon the sugar was set out in the "What is the precise meaning of the documents which it produced, the expression 'at the latest' and in panicular customs authorities could, at the time of is it to be understood as referring to the completion of the customs formalities, time of determination of the amount of have demanded the contested payment if the levy or to the first or last moment they had regarded the export levies as when actual payment (collection) may be payable. By not demanding payment of demanded"? the special levy at the time of completion of the formalities, the customs authorities forfeited their right to claim it sub- The order of the Tribunale di Genova sequently. was received at the Coun Registry on 2 July 1981.
The Administration acknowledged In accordance with Anicie 20 of the before the Tribunale di Genova that the Protocol on the Statute of the Coun of dav of completion of the customs Justice of the EEC, written observations formalities coincided with that on which were submitted by Proweditone the customs authorities accepted the Marittime S. Giacomo S.p.A.. rep- import or export declaration, but stated resented by E. Airenti of the Milan Bar. that, in its opinion, n was at thai bv the Italian Government, represented moment that the preliminary stage of the bv 1. M. Braguglia. Avvocato dello Stato, customs declaration was completed and by the Commission of the European whereas the calculation and collection of Communities, represented by its Legal the customs duties normally occurred at Adviser, R. Wainwright, acting as Agent, a later stage. It denied that the provision assisted by G. Berardis, a member of its of Community law in question acted as a Legal Depanment.
PROV. MAMTTIME S. GIACOMO v DOGANA DI GENOVA
Upon hearing the repon of the Judge- of those questions concerns the legal Rapporteur and the views of the classification under Community law of Advocate General, the Court decided to sugar "from abroad" intended for use as open the oral procedure without any "ships' stores". Such goods must be preparatory inquiry and, in accordance regarded as exempt from all Community- with Article 95 (1) of the Rules of duties, whether they are placed in a Procedure, to assign the case to the First "public" or "private" bonded warehouse. Chamber. There should be no difference in treatment in that regard and goods stored in a private bonded warehouse should, in the same way as those stored in a public bonded warehouse, be II — Written o b s e r v a t i o n s sub regarded as "stateless". mitted to the C o u r t
The goods in question do not fall within the scope of Regulations Nos 1009/67 7. Observations submitted by Prov- and 1076/72. The customs documents veditorie Mańttime S. Giacomo S.p.A. show that the goods were brought into the Community for use as ships' stores and are not therefore of Community origin. Much of the sugar in fact comes In the exporting company's opinion, it is from the Val d'Aosta, a region enjoying clear from Article 3 (2) of Regulation special status within the Community, and No 1076/72 that the levy must be cannot therefore be regarded as collected at the time of completion of the Community sugar since, in the exporting - customs formalities, that is to say when company's opinion, "it is from a territory the goods are presented or the which, as far as the Community is documents concerning the goods are concerned, was and is outside its produced to the customs authorities of territorial jurisdiction". the Member State in question. A Member State may not collect the levies at a later date.
2. Observations submitted by the Italian Government In its view, once the competent Italian authorities had authorized the expor tation of the goods without demanding payment of Community duties because According to the Italian Government, it they had not considered any duties to be does not appear from scrutiny of the pavable, they were noi entitled to take second sentence of Article 3 (2) of Regu subsequent action against the exporter lation No 1C76/72 that the provision unless there was a specific provision of acts as a bar in regard to the right to Community or national law enabling collect the levy. Accordingly, it does not them to exercise that right. impair the right or the duty of a Member State which has omitted to collect the lew as a result of an error at the time of The exporting company refers to certain completion of the customs formalities to questions which it had invited the demand it subsequently within any national court to refer to the Court of period of limitation which may be Justice for a preliminar.· ruling. The first applicable under its national legislation.
JUDGMENT OF :7. 5. 1982 — CASE 196/81
The "customs formalities" consist of the the expression in question means submission of an expon licence to the "forthwith", that is to say immediately- customs office (Anicie 8 (2) b of Regu- after completion of the customs lation (No 1373/70). The expon licence formalities. is considered to have been used when it has been submitted to the customs office and the document by which the In accordance with the Council Decision declarant states his intention to expon of 21 April 1970 on the Community's the goods has been accepted by that own resources, levies are to be collected
office. Moreover, completion of the by the Member States also "in formalities does not include the physical accordance with national provisions crossing of the Community frontier in imposed by law, regulation or the case of products which are the administrative action" and. in 1972, the subject of an expon declaration. Such process of partial harmonization of those products may remain under customs provisions had not even staned. For that control until they leave the Community reason, as the Coun has acknowledged (Anicie 15 (5) (b) of Regulation No on several occasions, for example in 1373/70). In those circumstances, the Joined Cases 66. 127 and 128/79 Salumi contested provision should be construed and Others [1980] ECR 1237, ". . . in so as bringing forward the date on which far as no provisions of Community law the competent authorities of the Member are relevant, it is for the national legal State may demand the levy to the time system of each Member State to lax- when the expon licence is presented to down the detailed rules and conditions the customs office, even if the goods for the collection of Community have not yet been physically exponed. revenues in general and agricultural Therefore, in addition to its normal levies in particular .
. .". Accordingly, a function of determining the levy provision of Community law providing, applicable, the submission of the expon without any justification, for forfeiture licence also determines the time at which by the State of its right to collect a debt the levy must be paid. would be quite incomprehensible. Fur- thermore, such forfeiture would constitute an exception and derogate from the principles in force governing It cannot be argued, either on the basis the collection of debts in the various of a literal interpretation, a logical Member States. Therefore, Community interpretation or a systematic interpret- legislation which has as its purpose to ation of the provision in question, that provide for forfeiture of rights should the right to demand the levy is barred. contain a clear and express provision to Although it is for the Member State to that effect, which is not the case in this
instance. demand the amount due by a certain date "at the latest", its failure to do so does not imply that the Member State forfeits its right and is relieved of its duty to demand the amount due from private J. Observations submitted by the persons. Moreover. although the Commission expression "at the latest" clearly reflects the intention not to delav the collection of the levy, its use is incorrect in so far as it is impossible to detect, in the According to the Commission, the use of legislation in question, an earlier time at the expression "at the latest" does not which the amount payable may be denote a form of forfeiture of the fiscal
demanded. That supports the view that claim at a specified moment but means
PROV. MARITTIME S. GIACOMO v DOGANA DI GENOVA
rather that the debt may be determined It was onlv bv the adoption of Regu- and therefore claimed even before the lation (EEC) 'No 1697/79 of 24 July day on which the customs formalities are 1979 (Official Journal 1979. L 197, p. 1), completed, as is generally the case which entered into force on 1 July 198C. moreover. Evidently, the calculation and that the Council resolved the problem of actual collection of the levy, that is to the post-clearance recover)· of impon or say payment thereof, may be made at a expon duties on goods entered for a later stage, in accordance with an customs procedure involving the undisputed principle of revenue law. obligation to pay such duties for which payment has not been required of the person· liable for payment.
Where the Community legislation provides for the payment of expon The Commission proposes that the levies, the fact that the exponer is answer to the question should be as unaware of his obligations or has not follows: been informed thereof in no way prevents him from incurring a fiscal debt, which cannot be subordinated to factors which are both subjective and variable "The expression 'at the latest' contained without defeating the objectives of in the second sentence of Article 3 (2) of economic polici' pursued by means of the Regulation No 1076/72 means that the application of export levies. Furthermore, obligation to pay the expon levy to accept that a fiscal claim is forfeited normally arises for exponers on the dav because no contemporaneous demand on which the customs formalities are for payment is made by the customs completed. However, it may also arise at officer responsible would be tantamount an earlier date. In both cases, it arises as to the creation of quite unjustified soon as the customs debt becomes discrimination. payable, in the sense that it may be collected by the competent authorities from that time."
Forfeiture of rights is unknown in the sphere of customs duties, whereas rights may be barred by limitation for well- established reasons relating to certaintv I l l — Oral p r o c e d u r e in legal relations. To state that a debt is payable does not mean that the creditor must demand payment thereof for fear ot forfeiting his rights but merely that he mav demand payment of the debi within At the sitting on 4 February 19S2 the the period of limitation. Italian Government, represented bv I. M. Bragugiia. Avvocato dello Stato, and the Commission of the European Communi- ties, represented by G. Berardis, a member of its Lepal Depanment. acting In the absence ot a relevam provision of as Ageni, presenied oral argument. Communia law. national law applies to the procedures for collecting taxes and. in particular, to the effects of limitation. That was the position when the events at The Advocate General delivered his issue in this case occurred. opinion at the silting on 1 April 19S2.
JUDGMENT OF 27. 5. 1982 — CASE 196/81
Decision
1 By order of 25 May 1981, which was received at the Court Registry on 2 July 1981, the Tribunale di Genova [District Court, Genoa] referred to the Court for a preliminar)' ruling under Anicie 177 of the EEC Treaty a question on the interpretation of Article 3 (2) of Regulation (EEC) N o 1076/72 of the Commission of 25 May 1972 laying down detailed rules for applying export levies on sugar and amending Regulation (EEC) N o 2637/70 (Official Journal, English Special Edition 1972 (II), p. 470).
2 The main action concerns the collection of the Community levy on consignments of refined sugar exported to Switzerland between August and December 1974 bv the plaintiff, Proweditorie Marittime S. Giacomo S.p.A., a ships' chandler for liners belonging to the Italia Maritime Company. The goods were originally intended for use as stores for liners and were placed in the plaintiff's private bonded warehouse at Genoa-Rivarolo.
3 N o levy was collected on the goods at the time of their exportation, that is to say at the time of completion of the customs formalities. Later however, in January 1975, the Genoa customs office requested the plaintiff to pay the levy on the ground that the failure to collect it earlier had been the result of an error.
4 Anicie 16 (1) of Regulation No 1C09/67/EEC of the Council of 18 December 1967 on the common organization of the market in sugar (Official Journal, English Special Edition 1967, p. 304), as amended by Regulation (EEC) N o 607/72 of the Council of 23 March 1972 (Official Journal, English Special Edition 1972 (I), p. 236), provides that:
"If the cif, price for white sugar or raw sugar is higher than the threshold price, a levy equal to the difference between those prices shall be charged on expons of the products in question.
Where the Communitv or anv region thereof can no longer be supplied with sugar at pnces within the limit of the threshold price, provision may be made for charging a special lew on expons of the product in question. Where the provisions of this subparagraph apply, those of the preceding subparagraph
PROV. MARITTIME S. GIACOMO v DOGANA Dl GENOVA
shall not apply" (The distinction between a levy and a special levy was abolished by Regulation No 3330/74).
"Save as otherwise provided by the Council in accordance with the procedure laid down in paragraph (3), the levy or the special levy to be charged, as appropriate, shall be that applicable on the day of exportation".
The purpose of those levies was to ensure that the Community was sufficiently supplied with sugar by discouraging exports at times when increases in world prices rendered such exports attractive.
5 Moreover, Regulation N o 1076/72 of the Commission, cited above, lays down detailed rules for applying the export levies. Anicie 3 of that regulation provides that:
"(1) Save in cases where the special expon levy is determined by invitation to tender, the levies referred to in Anicie Í shall be those applicable on the day on which the customs formalities referred to in the second subparagraph of Anicie 8 (2) (b) of Regulation (EEC) N o 1373/70 are completed.
(2) The levies shall be collected by the Member State on whose territory' the formalities referred to in paragraph (1) are completed. They shall be payable at the latest at the time of completion of those formalities".
6 The plaintiff company challenged the demands for payment made by the customs authorities before the Tribunale di Genova, which referred the following question to the Court of Justice for a preliminary ruling:
"What is the precise meaning of the expression 'at the latest' and in particular is it to be understood as referring to the time of determination of the amount of the levy or to the first or last moment when actual payment (collection) may be demanded"?
The levies referred to by the aforesaid regulations are those applicable on the day of completion of the customs formalities, which is defined by Article 15 (5) of Regulation (EEC) No 1373/7C of the Commission of 10 July 1970 on common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products subįeci to a
JUDGMENT OF 27. 5. 1982 — CASE 196/81
single price system (Official Journal, English Special Edition 1970 (II) p. 439) as being the day
" . . . on which the customs authorities accept the document by which the declarant states his intention to export the products in question . . . or to place the products under customs control . . . " .
8 The plaintiff relies on Article 3 (2) of Regulation N o 1076/72, which provides that the levies "shall be payable at the latest at the time of completion of [the customs] formalities", and on Article 15 (5) of the aforesaid Regulation N o 1373/70 in support of its argument that the levy in question should have been collected at the time when the application for an export licence was lodged. In its view, the customs authorities' failure to exercise their right to collect the levy leads, under the aforesaid provisions of Community law, to the forfeiture of that right.
9 The Amministrazione delle Finanze dello Stato [State Finance Administration] is of the opinion that the collection of customs duties or levies is a stage which occurs after the acceptance by the customs authorities of the import or export declaration. It denies that the provision of Community law in question acts as a bar precluding the competent authority of a Member State from demanding a levy which has not been collected as a result of an error at the time of completion of the customs formalities.
10 In the view of the Italian Government and the Commission, which have submitted observations to the Court, Article 3 (2) of Regulation No 1076/72 cannot be interpreted as meaning that, if at the time of completion of the customs formalities the right to collect the levy has not been exercised, the right to collect it subsequently is forfeited.
n That is the interpretation which must be adopted. In the first place, the actual text of the provision of Community law in question does not lead to the conclusion that the expression "at the latest" contained therein means that the fiscal claim is forfeited at a given time. There would be grounds for such a conclusion only if the text in question expressly provided for the concept of forfeiture and contained a clear and express provision to that effect.
PROV. MARITTIME S. GIACOMO v DOGANA DI GENOVA
i2 Furthermore, it is clear that the expression "at the latest" relates not to the collection of the debt but to the time when is becomes payable, which is the decisive factor for understanding the contested provision. The debt may be determined, and therefore become payable, even before the dav of completion of the customs formalities. Moreover, that is normally the case, as the Commission and the Italian Government emphasize.
u The expression "payable at the latest" contained in the provision in question must therefore be understood not as involving forfeiture of rights but rather as applying where the debt is determined, and consequently becomes payable, before the day of completion of the customs formalities. Accordingly, the calculation and actual collection of the levy, that is to sav payment thereof, may be made at a later stage.
Costs
14 The costs incurred by the Italian Government and the Commission of the European Communities, which have 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 national court, the decision on costs is a matter for that court.
On those grounds,
T H E C O U R T (First Chamber),
in answer to the question referred to it bv the Tribunale di Genova bv order of 25 May 19S1, hereby rules:
The expression "payable at the latest", contained in Article 3 (2) of Regulation (EEC) No 1C76/72 of the Commission of 25 May 1972 laying down detailed rules for applying export levies on sugar and amending Regulation (EEC) No 2637/70 (Official Journal, English Special Edition 1972 (II), p. 47C), must be understood not as involving forfeiture of rights but rather as applying where the debt is determined.
OPINION OF MR REISCHL — CASE 196/81
and consequently becomes payable, before the day of completion of the customs formalities. Accordingly, the calculation and actual collection of the levy, that is to say payment thereof, may be made at a later stage.
Bosco O'Keeffe Koopmans
Delivered in o p e n court in L u x e m b o u r g o n 27 M a y 1982.
For the Registrar H. A. Rühi G. Bosco Principal Administrator President of the First Chamber
OPINION OF MR ADVOCATE GENERAL REISCHL DELIVERED ON 1 APRIL 1982 '
Mr Pretident, is higher than the threshold price, that is Members of the Court, to sav the price determined under Article 12 of Regulation No 1009/67. a levy equal to the difference between those Article 16 of Regulation No 1C09/ prices is to be charged on expons of the 67/EEC on the common organization of product in question. Article 16 also the market in sugar (Official Journal, provides that where the Community or English Special Edition 1967, p. 304), as any region thereof can no longer be amended by Regulation (EEC) No supplied with sugar at prices within the b37/72 (Official Journal, English Special limit of the threshold price, provision Edition 1972 (I), p . 236), provides that if may be made for charging a special levy the cif. pnce for white sugar or raw on exports of the product in question, in sugar, which is determined by the which case the first-mentioned levy is Commission pursuant to Regulation inapplicable. Furthermore, the article (EEC) No 7S4/68 (Official Journal, provides that: "Save as otherwise English Special Edition 1968 (I), p. 161), provided by the Council . . . the levy or
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