C-231/81

Intervener: BUNDESMINISTER DER FINANZEN [Federal Minister of Finance]

on the interpretation of Regulation (EEC) N o 3004/75 of the Council of 17 November 1975 opening preferential tariffs for certain textile products originating in developing countries (Official Journal L 310, p. 24) and Council Regulation (EEC) No 3022/76 of 13 December 1976 opening, allocating and providing for the administration of Community tariff pre- ferences for textile products originating in developing countries and territories (Official Journal L 349, p. 69),

T H E COURT (Third Chamber)

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General : Sir Gordon Slynn Registrar: J. A. Pompe, Deputy Registrar

gives the following

I — Facts and written procedure (1) and (2) of Regulation (EEC) No 3004/75 and the conditions for On 20 December 1976 the plaintiff in the suspension of customs duty were met. main action and respondent in the appeal The court was of the opinion that Article (hereinafter referred to as "the plain- 3 (2) of Regulation No 3004/75 tiff"), Hellmuth Weidenmann GmbH indicated that the certificate of origin & Co. of 3 Kolpingstraße, Aschaffen- might be presented even ex post facto, as burg, entered for home use 41 bales of was borne out by the second paragraph worsted yarn fabric falling within sub- of Article 11 of Regulation (EEC) No heading 53.11 B II of the Common 3214/75 of the Commission of 3 Customs Tariff which it had imported December 1975 on the definition of the from Argentina. In the customs concept of originating products for declaration accordingly it gave Argentina purposes of the application of tariff pref- as the country of origin. It also erences granted by the European undertook to produce the certificate of Economic Community in respect of origin at a later date. The Hauptzollamt certain products from developing therefore issued a provisional assessment countries (Official Journal L 323, p. 1). to duty dated 21 December 1976 It considered further that as a matter of charging only import turnover tax on the law the application of the suspension of consignment; at the same time it customs duties not be restricted by requested the plaintiff to produce the Direction C of the German Gebrauchs- certificate of origin no later than 15 zolltarif. January 1977. The plaintiff did not send the certificate until 2 February 1977, The Hauptzollamt Würzburg lodged an however. appeal on a point of law [Revision] prin- cipally on the ground that grant of a preferential tariff was not justified if all On 3 February 1977, therefore, the the requirements of Regulation No Hauptzollamt issued a corrective notice 3004/75 were not fulfilled within the claiming DM 5 840-99, being customs period during which it was in force. That duty at the rate of 18% as provided for rule is based on the fact that "it is by the Common Customs Tariff, on the possible to check the ceilings and ground that by virtue of Direction C of maximum amounts only if at the time the the German Gebrauchszolltarif [Working volume of imports is ascertained no Tariff] a preferential duty could not be changes having retroactive effect might granted after 15 January Í977. still occur". On appeal by the plaintiff the Finanz- Moreover, it would not in the opinion of gericht München [Finance Court, the Hauptzollamt have been possible for Munich] annulled the corrective notice the imports to be charged against the by a judgment of 21 February 1979. In ceilings obtaining in the following period the statement of the grounds on which of preferential treatment since Regu- its decision was based the court stated lation No 3022/76 which was applicable that the imported goods were exempt for 1977 did not cover imports already from customs duty pursuant to Article 1 effected in 1976.

The plaintiff alleges that the appeal is request a preliminary ruling from the based solely on the argument that the Court of Justice on the following time-limit for producing the certificates questions: of origin, fixed in Direction C as being 15 January 1977, "is a provision of sub- "1. Is it possible for the suspension of stantive law and therefore constitutes an customs duties pursuant to Article 1 absolute time-bar". That argument is of Regulation (EEC) No 3004/75 to irrelevant, however, because no apply in the case of goods which agreement has been reached at were in fact imponed, presented and Community level on the fixing of an entered for home use in 1976 but for absolute time-limit for producing the which the certificate of origin was certificate of origin and therefore rules not produced until February 1977? of that nature cannot have the force of substantive law. 2. If the answer to Question 1 is in the In any case if, contrary to its view, there affirmative: Is that also the case if was no entitlement to exemption from production of the certificate of duty under Regulation No 3004/75, origin in 1977 was permissible, but there would be such entitlement under only earlier — on or before 15 Regulation No 3022/76. The plaintiff January 1977? maintains that the meaning and purpose of both regulations is to increase within 3. If the answer to Question 1 is in the the appropriate limits the volume of negative: Is it possible for the imports from developing countries; to suspension of customs duties restrict their scope "by petty bureaucracy pursuant to Article 1 of Regulation and formalism would be to frustrate (EEC) No 3022/76 to apply in the supra-national endeavours". case of goods which were in fact imported, presented and entered for The Federal Minister of Finance home use in 1976 but for which the intervened in the proceedings to propose certificate of origin was produced in that a preliminary ruling be obtained 1977?" from the Court of Justice. The Bundesfinanzhof considers that the The order containing the' reference was effect of Article 3 (1) of Regulation No lodged at the Court Registry on 10 3004/75 is that if one of the conditions August 1981. has not been fulfilled the imports may not be charged as permitted in that In accordance with Article 20 of the article and therefore there can be no Protocol on the Statute of the Court of suspension of customs duty. Justice of the EEC written observations were submitted by the Commission of Nevertheless, it is of the opinion that the European Communities, represented consideration should be given to whether by its Legal Adviser, P. Gilsdorf, acting those conditions must be fulfilled during as Agent, assisted by J. Grünwald, a the period when customs duties are member of the Commission's Legal suspended pursuant to Article 1 (1) of Department. Regulation No 3004/75, or whether the certificate of origin may be produced even after that period has expired. On hearing the report of the Judge- Rapporteur and the views of the It therefore decided by an order of 10 Advocate General the Court decided by July 1981 to stay the proceedings and an order dated 20 January 1982 to assign

the case to the Third Chamber pursuant consideration for as long as the period to Article 95 of the Rules of Procedure mentioned above continues to run, for in and to open the oral procedure without the absence of an express and unam- any preparatory inquiry. biguous provision in Regulation N o 3214/75 concerning any restriction on the duration of the validity of the cer- II — O b s e r v a t i o n s submitted pur- tificate of origin whereby the latter suant to Article 20 of the ceases to be valid after the importation P r o t o c o l on the Statute of has been effected "no restrictive interpret- the Court of Justice of the ation of the provision may be count- EEC enanced in view of the certificate- holder's legitimate expectation that he may rely on the provisions of Article 7". The Commission submits, first, that Regulation No 3004/75 contains no express provisions concerning late As a result, the customs office in which production of certificates of origin. It the formalities are completed is at liberty argues that their absence may not be pursuant to the second paragraph of considered as either prohibiting or auth- Article 11 of Regulation No 3214/75 to orizing late production of the certificate. decide whether or not it will take the certificate of origin into consideration However, the wording of Article 3 (2) after expiry of the period laid down for and the general aim of the regulation

JUDGMENT OF 10. 6. 1982 — CASE 231/81

the article does not indicate that the certificate of origin remains valid only By way of an alternative the Commission until the goods are declared to customs considers the third question in the and the allowance under Community law reference. of a uniform minimum time-limit for production in accordance with the terms of Article 7 would be compatible It submits the for Regulation No with the interesu of legal certainty. 3022/76 to be of application the goods in question must have been imported into the Community in the course of 1977.

lation. There is "neither a legal obligation nor a practical need to require all the customs procedures initiated At the time in question that problem had under the preferential scheme to be not been resolved by Community law terminated on 31 December, which and was therefore governed by the laws would moreover be impossible in practice of the Member States. Howsoever that in every case where the declaration of may be, the Commission considers thai entry for home use is made only on the the objections raised on the subject by last day of December". the Bundesfinanzhof to the effect that charging the importation against 1977 would discriminate against importers Consequently ex post facto production of who fulfilled all the conditions for certificates of origin is permissible even exemption from customs duties in 1977 after expiry of the period of preferential are unfounded because a preferential treatment provided that the charging of scheme of that nature is not designed to customs duty has not been re-introduced procure advantages for importers but to by that date, irrespective of whether or encourage trade with the countries in not the ceilings have been reached at the which the goods in question originated. Community level by the end of the year.

HAUPTZOLl^MT WÜRZBURG * TFEIDENMANN

free circulation (Official Journal L 205, origin might have been produced at p. 19) which provides that such a an earlier date. declaration may be replaced by a sub- sequent one. In that case the operative 2. If the period within which the cer- date for the fixing of the import duties is tificate must be produced pursuant "the date of acceptance of the to Article 7 of Regulation (EEC) No incomplete entr)'". 3214/75 had already expired when the certificate of origin was Accordingly, the Commission suggests produced the decision whether or that the replies to the questions which not to take account of the certificate have been raised be as follows: of origin under the second " 1 . The suspension of customs duties paragraph of Article 11 of that regu- pursuant to Article 1 of Regulation lation is a matter for the customs (EEC) No 3004/75 may apply in the authorities concerned." case of goods which were imported, presented to customs and declared for release into free circulation in I I I — Oral procedure 1976, but in respect of which the certificate of origin was produced in February 1977, provided that the At the sitting on 11 March 1982 the time-limit for production of the Commission of the European Communi- certificate laid down in Article 7 of ties, represented by J. Grunwald, acting Regulation (EEC) No 3214/75 had as Agent, presented oral argument and not passed when the certificate was replied to questions put by the Court. produced. That applies irrespective The Advocate General delivered his of whether or not the certificate of opinion at the sitting on 29 April 1982.

4 Regulation No 3004/75 provided for the suspension of customs duties on some products originating in certain countries from 1 January to 31 December 1976. Since the importation in question met the conditions laid down in that regulation the question arose whether it was within the maximum amount for which customs duties were suspended and whether it fell within the period during which a quantity of goods could be imported free of duty. Article 3 (1) of Regulation No 3004/75 provided that in order to determine when the maximum amount had been reached: "Imports of the products in question shall be actually charged against the Community ceilings and maximum amounts as and when the products are entered for home use and provided that they are accompanied by a certificate of origin." Article 3 (2) stipulated that: "Goods may be charged against a ceiling or maximum amount only if the certificate of origin . . . is presented before the date on which the levying of duties is re-introduced."

s That is the legal background to the dispute submitted in the last instance to the Bundesfinanzhof, which decided to refer to the Court for a preliminary ruling the following three questions:

" 1 . Is it possible for the suspension of customs duties pursuant to Article 1 of Regulation (EEC) No 3004/75 to apply in the case of goods which were in fact imported, presented and entered for home use in 1976 but for which the certificate of origin was not produced until February 1977?

2. If the answer to Question 1 is in the affirmative: Is that also the case if production of the certificate of origin in 1977 was permissible, but only earlier — on or before 15 January 1977?

s The way in which Regulation N o 3004/75 was drafted reflects that concern. The wording of Article 3 (1) of Regulation N o 3004/75 does not indicate whether the certificate of origin must be produced at the same time as the goods are declared for customs purposes, but paragraph 2 of the same aniele

JUDGMENT OF 10. 6. 1902 — CASE 231/81

shows that the two need not coincide, for it sutes that: "Goods may be charged against a ceiling . . . only if the certificate of origin is presented before the date on which the levying of duties is reintroduced." In the light of those provisions and the aims described above, it may be concluded that the certificate may be presented after the goods have been entered for customs purposes, provided that it is presented before the levying of duties is reintroduced.

io As far as the time-limit for producing the certificate of origin is concerned, reference must be made, since Regulation No 3004/75 is silent on the point, to the supplementary rules contained in Regulation (EEC) No 3214/75 of the Commission of 3 December 1975 (Official Journal L 323, p. 1). The combined provisions of Articles 7 and 11 of that regulation indicate that the certificate of origin:

(i) is normally valid for a period of five months after the date of issue by the responsible government authority of the exporting beneficiary country;

(ii) is valid for up to 10 months when the products pass through the territory of one or more countries in accordance with the provisions of Article 5 (1) (b);

1 3 The reply to be given to the national court is therefore that the suspension of customs duties pursuant to Article 1 of Regulation (EEC) No 3004/75 of the Council might apply in the case of goods which were imported, presented and entered for home use in 1976 even though the certificate of origin was produced after that regulation ceased to apply, provided that the certificate was valid and was produced in accordance with the conditions laid down in Articles 7 and 11 of Regulation No 3214/75 of the Commission.

Second question

u In view of the reply given to the first question the reply to the second question must be that since the validity of a certificate of origin is a matter of fact the certificate must be accepted if it satisfies Community requirements such as those described above, notwithstanding any requirement which the national customs authorities have thought it necessary to impose unilaterally. Anicie 4 (1) of Regulation No 3004/75 provides, in fact, that it is for the Commission, in close cooperation with the Member States, to take all necessary measures to ensure that the regulation is applied. Since the Community regulations are complete in themselves it is not necessary to have recourse to any national rules adopted unilaterally which are intended to govern the way in which they are to be implemented.

Third question

is Since the reply to the first question is in the affirmative it is not necessary to reply to the third question.

JUDGMENT OF 10. 6. 1982 — CASE 231/81

2. A valid certificate of origin must be accepted notwithstanding any requirement which the national customs authorities have thought it necessary to impose unilaterally.

Touffait Mackenzie Stuart Everling

Delivered in open court in Luxembourg on 10 June 1982.

J. A. Pompe A. Touffait Deputy Registrar Presidem of the Third Chamber