C-99/83

CLAUDIO FIORAVANTI

and

AMMINISTRAZIONE DELLE FINANZE DELLO STATO [State Finance A d m i n i s t r a t i o n ]

o n t h e interpretation of Regulation N o 5 4 2 / 6 9 of the Council of 18 M a r c h 1969 o n C o m m u n i t y transit (Official J o u r n a l , English Special Edition 1969 (I), p . 125) a n d Regulation N o 2 8 1 2 / 7 2 of t h e Council of 21 N o v e m b e r 1972 o n t h e conclusion of a n A g r e e m e n t between the E u r o p e a n E c o n o m i c C o m m u n i t y a n d t h e Swiss Confederation o n t h e application of t h e rules o n C o m m u n i t y transit (Official J o u r n a l 1973, L 365, p . 225),

FIORAVANTI v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

T H E C O U R T (Fourth C h a m b e r )

The facts of the case, the course of the authorities on importation, was accepted procedure and the observations sub- as being of Belgian origin and as having mitted pursuant to Article 20 of the been consigned from Belgium on the Protocol on the Statute of the Court of basis of all the documentation received Justice may be summarized as follows: by Mr Fioravanti and submitted to the customs authorities in Cremona. Sub- sequently the Brescia area customs auth- I — Facts and written p r o c e d u r e orities proceeded to review the parti- culars recorded in the three customs According to the order requesting a pre- entry documents and as a result of liminary ruling, Mr Fioravanti was inquiries made of the Belgian and Swiss instructed, in his capacity as customs customs authorities they established that agent, by Gormec Sri [hereinafter the goods had been imported into referred to as "Gormec"], whose re- Belgium from Australia and had been gistered office is in Milan, to clear consigned by Sofial, a company in through customs three consignments of Brussels, passing initially through the butter which had originated in the Community and had been imported from customs office at Montzen, to Roba SA Belgium. After receiving the documen- of Basel at the free port of La Praille, tation and establishing that it was correct Geneva, and were then re-consigned and in order, Mr Fioravanti submitted from that free port to Magazzini the relevant definitive import dec- Generali Cariplo in Cremona. They also larations. The goods were then cleared ascertained that the Swiss customs auth- through customs. on the basis of three orities had marked the CIM [Inter- customs entiy documents issued by the national Convention concerning the customs authorities at Cremona after the carriage of goods by rail — Bern 1961] goods had been stored at the premises of international consignment notes issued Magazzini Generali Cariplo in Cremona. for the onward dispatch with the symbol Each entry document was used to clear T2, indicating internal Community through customs 50 000 kg of butter transit, because of an alleged error which, when inspected by the customs which, it is assumed, derived from the

fact that Copy No 3 of the CIM the EEC and the Swiss Con- consignment notes issued in Belgium had federation on the application of been lost. That copy should have been the rules on Community transit marked with the symbol indicating the contained in Regulation (EEC) No Community or extra-Community origin 2812/72 of the Council and to other of the goods being transported. In the specific provisions of those rules, absence of the symbol T l , which must a transit operation involving indicates extra-Community origin, it goods which, after being dispatched is presumed that the goods are the sub- from Belgium (customs office at ject of an internal Community transit Montzen) to a specific consignee at operation. the free port of Geneva (La Praille), Switzerland, are re-consigned by that person, through the customs The Italian authorities therefore made office of that free port, to another an assessment in respect of the three consignee in the city of Cremona customs documents and required the (Italy) and definitively imported payment of uncollected duties both from there, be regarded as Community Gormec and from Mr Fioravanti, who transit? was liable on a subsidiary basis pursuant to the second paragraph of Article 41 of Italian Customs Law No 43 of January 2. In the circumstances under con- 1973. Since Gormec was insolvent, the sideration, was it lawful for the Italian authorities served Mr Fioravanti Swiss customs authorities to issue with an order to pay LIT 243 400 755. CIM international consignment notes .containing references to the consignment notes relating to the Mr Fioravanti challenged that order by- previous phase of the carriage and to proceedings before the Tribunale di mark them with the symbol 'T2 Brescia [District Court, Brescia] claiming indicating internal Community tran- that the Italian Finance Administration sit, on the basis of the assertion (for had no power to require payment of the which there is no proof inasmuch as duties since, under Article 36 of Regu- Copy N 3 of those documents is lation No 542/69, the recovery thereof presumed lost) that the earlier ought to be effected by the Belgian auth- consignment notes were not marked orities, being the authorities in the with any symbol and therefore did Member State in which the offence was not bear the symbol T l , in the committed. That view, which was dis- absence of which the Community puted by the Italian Finance Ad- transit operation had to be treated as ministration and rejected by the court of internal and not external, that is to first instance, was again put forward in say relating to goods which did not the proceedings before the Corte di come from countries outside the Appello which, by order of 20 April Community? 1983, decided pursuant to Article 177 of the EEC Treaty to stay the proceedings until the Court of Justice had given a 3. In the case of goods which in fact preliminary ruling on the following ques- came from outside the Community tions: (in this case from Australia) and were imported into Belgium tem- porarily and therefore without the payment of any customs duty in " 1 . With particular reference to Articles Belgium, the Member State of the 1 and 5 of the Agreement between Community in which the transit in

4. Since Article 36 (1) of Regulation (EEC) No 542/69 provides that 'When it is found that, in the course II — W r i t t e n observations of a Community transit operation, s u b m i t t e d to the C o u r t an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member The plaintiff in the main proceedings, State . . .', must the recovery of the Mr Fioravanti, claims that contrary to agricultural levy be effected by the the view expressed by the Corte State in which the transit described d'Appello, Brescia, the No 3 copies of as being an internal Community the CIM consignment notes issued in transit operation commenced or by Belgium were not lost. For the first two the State from which the goods were consignments, those copies reached re-consigned, by means of pro- Switzerland in the normal way. Only the ceedings against the traders con- No 1 copy for the last consignment cerned, even though in this case the appears to have been lost in Switzerland, offence was discovered in Italy?" so that the customs authority validated Copy No 2 as Copy No 3. It should however be noted that that copy of the consignment note had not been marked The request for a preliminary ruling was received at the Court Registry on 30 with the symbol T l by the Belgian May 1983. customs authorities at Montzcn cither.

Pursuant to Article 20 of the Protocol on the Statute of the Court, written obser- Consequently, this case is the result of an vations were submitted by C. Fioravanti, unlawful act committed in Belgium when the plaintiff in the main proceedings, the Community transit customs documen- represented by Gregorio Leone of the tation which should accompany a Milan Bar, by the Italian Government, consignment of butter bound for Italy represented by the Avvocato dello Stato, was drawn up. The goods were sent by O. Fiumara, and by the Commission of rail from Montzen (Belgium) and the six the European Communities, represented by Alberto Prozzillo, a member of its consignments notes relating thereto were Legal Department. riot marked with the symbol T l to indicate the non-Community origin of

Consequently, an operation involving the In relation thereto, Article 11 of Regu- transport, as in this case, of butter lation No 385/73 of the Commission of consigned from Belgium to the free port 19 January 1973 (Official Journal 1973, in Geneva and then re-consigned to Italy L 42, p. 1) on the methods of must be regarded as Community transit. administrative cooperation to safeguard the free movement of goods in The rules on Community transit relate Community trade provides as follows : solely to the movement of goods between two points within the Com- munity, and it is immaterial if the goods "For the purpose of implementing the are kept for a time on Swiss territory or provisions of Commission Regulation if, during the operation, ownership of (EEC) N o 304/71 of 11 February 1971 the goods changes as a result of their concerning the simplification of Com- being sold whilst in transit. munity transit procedures for goods transported by rail: The reply to the question can therefore only be affirmative. the international consignment note . . . drawn up in respect of goods As regards the second question, the accepted for transport by the railway plaintiff in the main proceedings claims authorities of an original Member State that, contrary to the view expressed by shall have equivalent effect to document the Corte di Appello, Brescia, not all the T2 provided that it does not bear the No 3 copies of the consignment note indication T l in accordance with the were lost in Switzerland. But it is in- provisions of Article 7 (2) of the afore- contestable that none of the consignment said regulation . . ."

Article 8 Consequently, the only reply to the question must be that the drawing up of the documents and the carriage of goods "2. For goods referred to in Article 1 (3) originating outside the Community, on of the Regulation on Community the basis of documents valid for internal transit. . . the Swiss office of depar- Community transit, give rise to liability ture shall indicate on the Copy No 3 attaching only to traders in the country of the international consignment from which the goods were consigned note that the goods to which it (Belgium) or to traders in the country relates are being forwarded under from which the goods were re-consigned the procedure for internal Com- (Switzerland) but not to traders in the munity transit. To this end, it shall country in which definitive importation enter in the 'Description of goods' took place. space the symbol T2 and its stamp." With regard to the fourth question, the plaintiff in the main proceedings claims that the Community legislature decided On the basis of those provisions, to follow the general principle of locus the plaintiff in the main proceeding commissi delicti. Accordingly, it may be concludes that since neither the symbol stated on the basis of Article 36 of Regu- T l nor the symbol T2 was entered on lation No 542/69, in response to the the CIM consignment notes by the question submitted, that even though the Belgian customs authorities in Montzen, offence was discovered only in Italy the Geneva customs authorities were following the re-examination of the obliged to take the view that the goods particulars recorded in the import docu-

The Italian Government considers that the first question submitted for a pre- Thus, recovery of the agricultural levy liminary ruling should be answered in must be pursued in the State (Belgium) the affirmative. in which the carriage described (in the absence of the indication T l ) as internal Community transit originated or, in the alternative, in the State (Switzerland) In the terms of Regulation No 542/69 from which the goods were re-consigned and the agreement between the and where the indication T2 was — in European Economic Community and the the event erroneously — entered on the Swiss Confederation referred to in Regu- CIM consignment notes. Any other lation No 2812/72, the rules on conclusion would be contrary to Article Community transit apply to the move- 36 of Regulation No 542/69 on ment of goods between two points Community transit. situated in the Community, via Swiss territory, whether the goods are con- signed direct, with or without tran- shipment in Switzerland, or re-consigned The Italian Government points out with from Switzerland, where appropriate regard to the facts of the case that an after storage in a customs warehouse. additional inspection, carried out in The consignment of goods from Belgium Belgium under Article 18 (2) of Council to Italy therefore falls within the Regulation No 2891/77 by the Com- Community transit procedure where the mission in May and June 1978, goods cross Swiss territory, whether the established that three consignments, each goods are sent direct or are placed in a of 100 000 kg of butteroil of non- customs warehouse in Switzerland for Community origin, were sent from re-consignment to Italy.· Belgium to Switzerland; the first two consignments were accompanied by documents on which the symbol T l had not been entered, whilst in the case of the third consignment it had been The fact that re-consignment from impossible to determine whether that Switzerland is the responsibility of the symbol had been entered on the addressee of the consignment from documents. Some of the goods, namely Belgium is necessarily immaterial and is 100 000 kg from the first two con- not such as to break the continuity of signments and 50 000 kg from the third Community transit, in so far as that consignment, were re-consigned to Italy continuity is ensured by storage in the with Swiss consignment notes marked free port, except in the cases referred to with the symbol T2. in Article 5 of the said agreement.

In general, the question of determining Article 7 (2) of Regulation No 304/71 the locus commissi delicti has given rise to provides that with respect to goods differing views — some consider that the referred to in Article 1 (2) of Regulation offence is committed where the unlawful No 542/69, the office of departure is act is committed whereas others consider to indicate, on Copy No 3 of the that the offence is committed where the consignment note, that the goods to event occurs, if that event is necessary which that document refers are carried to complete the offence (place of under the external Community transit completion). In fact, it seems that the procedure. To that end, it is clearly to solution depends essentially on the mark the symbol T l in the space wording of the positive rule governing "description of goods". An international the specific case in question. consignment note not bearing any sym- bol is to be regarded as a T2 document.

As regards Article 36 of the regulation in question, it seems that the provision is In the operations with which this case is intended to refer to the place where the concerned, it is established that when the irregularity was committed.

JUDGMENT OF 27. 11. 1984 — CASE 99/83

As regards the second question, it is It is therefore appropriate to conclude apparent from the context of Article 7 of that the offence was committed in Regulation No 304/71 that an inter- Belgium where, when dispatched, the national consignment note issued in a goods were declared for free circulation, Member State is equivalent to an internal and not in Italy where the goods arrived Community transit document, unless ultimately; consequently, recovery of the the customs office of departure enters levies (from Belgian traders) should have the symbol T l . Moreover, the above- been undertaken by Belgium, which, mentioned agreement empowers the being the Member State in which the Swiss, authorities to issue internal offence was committed, is liable to pay Community transit documents upon to the Commission the amounts due in presentation of an internal Community respect of the duties payable. transit document issued in a Member

FIORAVANTI v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

III — O r a l p r o c e d u r e (a) That responsibility for payment of a customs debt arises not from the carriage of goods, even if such carriage was covered by an irregular At the sitting on 29 May 1984 oral document, but from other causes argument was presented for the plaintiff specified in the directive dealing with in the main proceedings, C. Fioravanti, customs debt; represented by G. Leone, of the Milan Bar, for the Italian Government, rep- resented by A. Squillante, acting as (b) That liability under administrative or Agent, assisted by O. Fiumara, Avvocato criminal law may attach to a trader if dello Stato, and by the Commission of he knowingly uses a false document; the European Communities, represented by its Agent, A. Prozzillo.

(c) That if the Belgian customs office of The Advocate General delivered his departure had not entered the sym- opinion at the sitting on 3 July 1984.

JUDGMENT OF 27. 11. 1984 — CASE 99/83

Decision

1 By an order dated 20 April 1983, which was received at the Court on 30 May 1983, the Corte d'Appello [Court of Appeal], Brescia, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of the Agreement between the European Economic Community and the Swiss Confederation on the application of the rules on Community transit (Official Journal 1973, L 365, p. 226) (here- inafter referred to as the "Agreement") and of Regulation N o 542/69 of the Council of 18 March 1969 on Community transit (Official Journal, English Special Edition 1969 (I), p. 125).

FIORAVANTI v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

goods. Under the regulations in force, an operation is deemed to constitute internal Community transit in the absence of the symbol T l indicating the non-Community origin of the goods.

6 The Italien customs authorities thereupon calculated that the agricultural levies payable at the dates of the various import documents on the consignments in question as goods originating in a non-member country amounted to LIT 243 400 755. It required Gormec Sri and, in the alter- native, Mr Fioravanti, who was liable on a subsidiary basis under Article 41 of the Italian Customs Law, to pay the sum in question. Gormec Sri did not pay and attempts to levy execution against that company proved fruitless. Consequently, on 17 May 1977 the State Finance Administration served an order on Mr Fioravanti requiring him to pay the above-mentioned sum of LIT 243 400 755.

7 Mr Fioravanti challenged that order before the Tribunale di Brescia [District Court, Brescia]. He put forward several arguments in defence of his position, contending in particular that the authority which issued the order lacked jurisdiction. He observed, in that regard, that the infringements or irregu- larities concerning the Community transit in question had been committed in another Member State (Belgium) or in a State associated with the EEC for the purposes in question by virtue of an international agreement (Switzerland) and that, by virtue of Article 36 of Regulation No 542/69, "the recovery of duties or other charges which may be chargeable shall be effected by that Member State".

2. In the circumstances under consideration, was it lawful for the Swiss customs authorities to issue CIM international consignment notes containing references to the consignment notes relating to the previous phase of the carriage and to mark them with the symbol T2 indicating internal Community transit, on the basis of the assertion (for which there is no proof inasmuch as Copy N o 3 of those documents is presumed lost) that the earlier consignment notes were not marked with any symbol and therefore did not bear the symbol T l , in the absence of which the Community transit operation had to be treated as internal and not external, that is to say relating to goods which did not come from countries outside the Community?

3 In the case of goods which in fact came from outside the Community (in this case from Australia) and were imported into Belgium temporarily and therefore without the payment of any customs duty in Belgium, the Member State of the Community in which the transit in question began, does that transit operation, which was carried out on the basis of documents permitting internal Community transit, give rise to liability on the part of the country (and of the traders) from which the goods were consigned (Belgium) or on the part of the country from which they were subsequently re-consigned (Switzerland) and not on the part of the country (Italy) where the goods were definitively imported on the basis of documents which were formally valid?

4 Since Article 36 (1) of Regulation (EEC) N o 542/69 provides that 'When it is found that, in the course of a Community transit operation, an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member State . . .', must the recovery of the agricultural levy be effected by the State in which the transit described as

(a) the copy for the office of departure, bearing the number 1 ;

(b) the copy for the office of destination, bearing the number 2;

(c) the copy for return, bearing the number 3;

(d) the statistical copy, bearing the number 4.

JUDGMENT OF 27. 11. 1984 — CASE 99/83

Each copy must bear the symbol T l in the case of external Community transit or the symbol T2 in the case of internal Community transit. For goods carried by rail the accompanying documents are called "International Consignment Notes (CIN)".

FIORAVANTI v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

T h e s e c o n d q u e s t i o n , c o n c e r n i n g the issue of T 2 consignment notes

i6 The second question is intended to determine whether, and if so in what circumstances, the Swiss customs authorities may issue CIM International Consignment Notes bearing the symbol T2 to indicate internal Community transit. In that connection, it must be remembered that, by virtue of Article 6 of the Agreement, the competent Swiss customs offices are empowered to assume inter alia the functions of offices of departure, offices of transit, offices of destination and offices of guarantee. Subject to certain provisions specified in the Agreement, the issue of T2 documents by a Swiss office of departure is subject to the presentation of T2 documents drawn up in a Member State. The competent offices of departure in the Member States are empowered to issue T l or T2 documents which are valid for a Swiss office of destination.

The third and fourth questions, concerning the recovery of duties

i9 Article 36 (1) of Regulation N o 542/69, which was in force at the material time, provided:

" 1 . When it is found that, in the course of a Community transit operation, an offence or irregularity has 'been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member State in accordance with its provisions laid down by law, regulation or administrative action, without prejudice to the institution of criminal proceedings."

That provision was also applicable to the Swiss Confederation by virtue of the Agreement.

20 Mr Fioravanti maintains that when the goods arrived in Italy they were accompanied by consignment notes bearing the symbol T2 The Italian customs authorities therefore properly admitted the goods without charging customs duties and agricultural levies, since no offence or irregularity within the meaning of the regulation had been committed in Italy.

2i The Commission considers that Article 36 of Regulation N o 542/69 is not applicable to this case. It maintains that the release into circulation in a Member State of non-Community goods which were not previously in tree circulation in the Community causes customs duties and other charges payable in respect of their release into circulation to become due That event occurred in Italy and the duties and charges must be recovered there. The simple fact of entering the symbol T2 on the consignment notes accompanying non-Community goods does not give rise to the collection ot any duty or charge. For that reason Article 36 of the regulation is not applicable, in the Commission's view.

On those grounds,

T H E C O U R T (Fourth Chamber),

in reply to the questions submitted to it by the Corte d'Appello, Brescia, by order of 20 April 1983, hereby rules:

1. Where goods are sent from Belgium to a specified consignee in the free port of La Praille, Geneva (Switzerland), and arc re-consigned by that person through the customs office of that free port to another

JUDGMENT OF 27. 11. 1984 — CASE 99/83

person in Italy, the operation must be regarded as constituting Community transit.