C-321/82

JUDGMENT OF THE COURT (FIRST CHAMBER) 27 OCTOBER 1983 1

Volkswagenwerk AG v Hauptzollamt Braunschweig (reference for a preliminary ruling from the Finanzgericht Hamburg)

(Preferential tariffs — Production of certificates of origin)

Case 321/82

Common Customs Tariff — Generalized preference scheme in favour of developing countries — Suspension of customs duties up to a certain ceiling — Certificate of origin of goods — Production after re-introduction of customs duties — No entitlement to exemption (Comicii Regulation No 2789/79, Art, 1 (3) and Art. 3 (1) and (2))

It follows from all the provisions of that the goods must be charged against Regulation No 2789/79 opening pref­ the ceiling in order to obtain exemption erential tariffs for certain products from duties. originating in developing countries, especially Articles 1 (3) and 3 (1) and (2) Accordingly, the suspension of customs thereof, that production of the certificate duties provided for in the regulation may of origin of the products in question is not be applied to goods imported and necessary for the goods to be charged entered for free circulation before the re- against the ceiling on imports which introduction of customs duties if the enjoy suspension of customs duties certificate of origin is produced after the determined pursuant to Article 1 (3) and re-introduction has come into effect.

HAUPTZOLLAMT [Principal Customs Office] BRAUNSCHWEIG,

on the interpretation of Council regulations relating to the application of preferential tariffs granted by the Community in respect of certain products originating in developing countries ,

THE COURT (First Chamber )

composed of: T. Koopmans , President of Chamber , A. O'Keeffe and G. Bosco , Judges ,

Advocate General : S. Rozès Registrar : P . Heim

gives the following

Article 2, as soon as the ceilings fixed are p. 1) provides that it must be produced reached, the levying of customs duties to the customs authorities in the Member may be re-introduced until the end of State in accordance with the procedures the year in question. The Commission, laid down by that State. acting in close cooperation with the competent authorities of the Member States, monitors the extent to which the Article 7 of that regulation provides that ceilings have been reached and, if the certificate must be produced, to the necessary, must re-introduce the levying Community customs office at which che of duties by regulation (Article 4). goods are presented, within 10 months Article 3 of the regulation provides that: of the date of issue by the responsible governmental authority of the exporting beneficiary country. However, according "(1) Imports of the products in question to Article 11 certificates produced after shall be charged against the expiry of that period may be accepted by Community ceilings and maximum the competent customs authorities where amounts as and when the products the failure to observe the time-limit is are entered for free circulation, on due to force majeure or to exceptional the basis of the customs value of circumstances and also where the the said products, and provided products have been presented to them that they are accompanied by a before expiry of that period. certificate of origin in accordance with the rules laid down in Article 1 (2)· 2. Volkswagenwerk AG, the plaintiff in the main proceedings, is exempted, in (2) Goods may be charged against a respect of the goods it imports, from ceiling or maximum amount only if customs clearance formalities under the the certificate of origin referred to procedure known as "Zollbehandlung in paragraph (1) is submitted before ohne Abfertigung" laid down in the date on which the levying of Paragraph 40 (a) of the Zollgesetz duties is re-introduced. [Customs Law], Under that procedure the declarant is permitted to put the goods in question into free circulation by (3) The extent to which the ceilings himself keeping a record of those goods. and maximum amounts have been The recording of the goods gives rise to used shall be determined at Com­ the customs debt. munity level on the basis of the imports charged in accordance with paragraphs (1) and (2)." On 11 March 1980 the plaintiff in the main proceedings declared the goods which it had recorded in February 1980 As regards the certificate of origin to the Customs office at Wolfsburg for referred to in that article, Commission the purposes of the customs declaration Regulation (EEC) No 3067/79 of 20 for February 1980. Amongst those goods December 1979 on the definition of the were four consignments of accumulators, concept of originating products for classified under heading 85.04 of the purposes of the application of tariff Common Customs Tariff, originating in preferences granted by the European Yugoslavia. On 21, 28 and 29 February Economic Community in respect of 1980 the plaintiff had entered them in its certain products from developing records as "exempt from duty" under the countries (Official Journal 1979, L 349, preferential tariff. For those accumu-

By a notice of re-assessment dated 19 March 1980 the Hauptzollamt [Principal 3. In the grounds of its order 'for Customs Office], Braunschweig, charged reference the Finanzgericht points out customs duty of DM 28 914.50 on the that the facts which gave rise to the accumulators calculated at the tariff rate Weidenmann judgment are different of 9.5% applicable to non-member from those of the instant case. The countries on the ground that the certi­ importation in the Weidenmann case ficates of origin had not been produced occurred on 20 December 1976, that is within the period in which the pref­ to say during the period in which Regu­ erential tariff was in force. lation No 3004/75 opening preferential tariffs for certain products in 1976 (Official Journal 1975, L 310, p. 24) After the plaintiff's objection lodged applied, whilst the certificate of origin against that notice had been rejected, it was not produced until 2 February 1977. brought an action before the Finanz­ In that case, however, customs duties gericht [Finance Court] Hamburg. In were not re-introduced, the suspension support of its application it essentially of duties being continued into 1977 by argued that in order for the preferential Regulation No 3022/76 (Official Journal tariff to apply it was not the time when 1976, L 349, p. 69). the certificate of origin was produced which counted but the time when the goods were released into free circulation, Although the operative part of the which in this case was when they were Weidenmann judgment contains no recorded under the procedure provided reservation as to the re-introduction of for by Paragraph 40 (a) of the customs duties, the judgment never­ Zollgesetz, thus before the preferential theless seems to be based on the tariff was abolished. On this point it assumption that the certificate of origin referred to the judgment of the Court of may not be produced after the period of Justice of 10 June 1982 in Case 231/81 application of the preferential tariff has (Hauptzollamt Würzburg v H. Weiden- expired unless duties have not been re­ mann GmbH & Co. [1982] ECR 2259) in introduced. In this regard the Finanz­ which it was held that: gericht points out that according to the grounds of that judgment the certificate "The suspension of customs duties may be presented after the goods have pursuant to Article 1 of Regulation been entered for customs purposes, (EEC) No 3004/75 of the Council might provided that it is presented before the apply in the case of goods which were levying of duties is re-introduced imported, presented and entered for (paragraph 9), and that the grounds of home use in 1976 even though the certi­ that judgment take into consideration the

Considering that neither the rules applicable nor the Court's judgment of 10 June 1982 could resolve the question whether the certificates of origin may be II — Written observations sub­ produced after customs duties have been mitted to the Court re-introduced, the Finanzgericht, by order of 29 October 1982, stayed the proceedings and submitted the following question to the Court for a preliminary Volkswagenwerk AG, the plaintiff in the ruling: main proceedings, in substance maintains the view which it advanced in the proceedings before the Finanzgericht. It "Must Council Regulation (EEC) No considers that, by virtue of the applicable 2789/79, especially Articles 2 and 3 regulations and the Court's judgment of thereof, read in conjunction with Com­ 10 June 1982 in the Weidemann case, the mission Regulation (EEC) No 3067/79, only relevant time for the purposes of the especially Articles 7 and 11 thereof, be grant of preference is the time when the construed as meaning that the certificate goods in question are released into free of origin may no longer be validly circulation, which in this case was the produced after the customs duty has date on which they were recorded under been re-introduced?" the simplified customs declaration pro-

JUDGMENT OF 27. 10. 1983 — CASE 321/82

In this regard it refers to Article 3 (2) of Regulation No 2789/79 which provides Finally, there is no rule which might give that goods may be charged against a rise to a legitimate expectation on the ceiling only if the certificate of origin is part of traders that they may produce the

VOLKSWAGENWERK v HAUPTZOLLAMT BRAUNSCHWEIG

certificate of origin even after the re- III — Oral procedure introduction of duties without losing their right to exemption from customs duty. Article 3 (2) of Regulation No 2789/79 unequivocally states that the At the sitting on 14 July 1983 the Com­ certificate of origin must be submitted mission of the European Communities, before duties are re-introduced. Fur­ represented by Jürgen Grunwald and thermore, Articles 7 and 11 of the Xenophon Yataganas, members of its Commission's implementing regulation Legal Department, presented oral argu­ make no express derogation from that ment. provision and they cannot be construed in a way which is contrary to their legal basis. The Advocate General delivered her opinion at the sitting on 6 October 1983.

Decision

1 By an order of 29 October 1982, received at the Court on 16 December 1982, the Finanzgericht [Finance Court] Hamburg referred to the Court for a preliminary ruling under Article 17 of the EEC Treaty a question on the interpretation of Council Regulation No 2789/79 of 10 December 1979 opening preferential tariffs for certain products originating in developing countries (Official Journal, L 328, p. 25) and Commission Regulation No 3067/79 of 20 December 1979 on the definition of the concept of originating products for purposes of the application of tariff preferences granted by the European Economic Community in respect of certain products from developing countries (Official Journal, L 349, p. 1).

6 Since the importer maintained that the moment when the goods were put into free circulation must be regarded as decisive in applying suspension and, moreover, the certificates of origin were valid for 10 months pursuant to Article 7 of Regulation No 3067/79, the national court decided to refer the following question to the Court for a preliminary ruling:

"Must Council Regulation (EEC) No 2789/79, especially Articles 2 and 3 thereof, read in conjunction with Commission Regulation (EEC) No 3067/79, especially Articles 7 and 11 thereof, be construed as meaning that the certificate of origin may no longer be validly produced after the customs duty has been re-introduced?"

7 In its judgment of 10 June 1982 in Case 231/81 (Hauptzollamt Würzburg v Weidenmann [1982] ECR 2259) the Court stated that the suspension of

VOLKSWAGENWERK v HAUPTZOLLAMT BRAUNSCHWEIG

customs duties under the system of tariff preferences in favour of developing countries may apply to goods imported, presented and entered for home use during the calendar year in which suspension applies even though the certi­ ficate of origin is produced after the regulation suspending the duties has ceased to apply, provided that the certificate is valid and, that it is produced in accordance with the conditions laid down by the relevant rules.

8 It must be emphasized that the aforesaid judgment deals only with the situation where the levying of duties has not been re-introduced and where the late production of the certificate of origin cannot cause the ceiling established for the goods in question to be exceeded since the period of suspension of duties has been extended. That is why the judgment states that if the Commission has not re-introduced the duties in the calendar year in question late production of the certificate in the early months of the following year cannot, any more than late production in the same year, prejudice the effectiveness of the regulation providing for suspension.

13 Articles 7 and 11 of Regulation No 3067/79, to which the national court refers, are no obstacle to such interpretation. Those provisions relate to the duration of the validity of certificates of origin from the date of their issue by the competent authority in the exporting country and to certain cases where a certificate may be validly produced after the time-limit has expired; thus they do not concern the question of the effect of the re-introduction of duties on the right to exemption where the certificate has not yet been produced when the re-introduction takes effect.

1 4 In the circumstances the question put by the Finanzgericht Hamburg must be answered to the effect that Article 3 of Regulation No 2789/79 must be interpreted as meaning that the suspension of customs duties provided for thereby may not be applied to goods imported and entered for free circu­ lation before the re-introduction of customs duties if the certificate of origin is produced after the re-introduction has come into effect.

Costs

15 The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. As the proceedings are, as far as the parties to the main action are concerned, in the nature of a step in the proceedings before the national court, the decision as to costs is a matter for that court.

VOLKSWAGENWERK v HAUPTZOLLAMT BRAUNSCHWEIG

On those grounds,

OPINION OF MRS ADVOCATE GENERAL ROZÈS DELIVERED ON 6 OCTOBER 1983 1

Mr President, developing countries, 2 on the basis Members of the Court, of which Commission Regulation No 3067/79 of 20 December 1979 on the definition of the concept of originating products for purposes of the application The Finanzgericht [Finance Court] of tariff preferences granted by the Hamburg seeks an interpretation of European Economic Community in Council Regulation No 2789/79 of 10 respect of certain products from de­ December 1979 opening preferential 3 veloping countries was adopted. tariffs for certain products originating in

2 — Official Journal, L 328, 24. 12. 1979, p. 25. 1 — Translated from the French. 3 — Official Journal, L 349, 31. 12. 1979, p. 1.