C-83/89

Mr President, According to the written observations of the Members of the Court, Belgian Government, in practice, a mere oral declaration is accepted where the value 1. On 4 July 1983, Mr Houben, a Belgian of the goods is modest. Furthermore, when resident, was stopped and questioned by goods are discovered inside Belgian officials of the customs office at Eynatten in territory, that is to say outside the customs Belgium as he was returning in his vehicle zone, Article 224 of the Belgian Law places from the Federal Republic of Germany. The the burden of proof that the importation customs officials found that he was was fraudulent on the authorities. Where importing a cassette player, an amplifier and goods are discovered at the frontier or two loudspeakers, all manufactured by within the customs zone however, the Pioneer, which were installed in his vehicle, burden of proof lies on the importer. without declaring them or paying customs duty on them. On 17 December 1984, Mr Houben was prosecuted in the tribunal correctionnel (Criminal Court), Verviers, which referred the case, for procedural 3. It appears that a discussion arose before reasons, to the Correctionele Rechtbank the Hof van Beroep, Antwerp, as to the (Criminal Court), Tongeren. He was concept of 'goods in free circulation' and acquitted by that court. The Belgian the rules of proof in that regard. It is Minister for Finance and the Openbaar relevant to note, in that connection, that, Ministerie (Public Prosecutor's Depart­ according to the written observations of the ment), however, lodged an appeal to the Belgian Government, the procedure before Hof van Beroep (Court of Appeal), the Correctionele Rechtbank, Tongeren, Antwerp. revealed that Mr Houben had purchased the hi-fi equipment in question from a third 2. It appears that Mr Houben is charged party who had himself acquired it from a under Articles 220 to 222 of the Belgian member of the armed forces serving in the Law of 18 July 1977 (hereinafter referred to Federal Republic of Germany. Article 65(2) as 'the Belgian Law') laying down general of the Agreement of 3 August 1959 to provisions on customs and excise ' with supplement the Agreement between the having failed to declare or to pay customs parties to the North Atlantic Treaty duty on the goods in question. Article 220 regarding the status of their forces with of the Belgian Law provides that all persons respect to foreign forces stationed in the must make the necessary declarations to Federal Republic of Germany provides that customs officials, under penalty of goods destined for the military canteens of a 2 imprisonment. Goods which are in free foreign force stationed in that State are not circulation must be declared, but no to have any import duties levied on them. customs duty will be charged on them. 3 Nor may they be disposed of by way of 4 either sale or gift. s Original language: French. 1 — Moniteur beige, 21.9 1977 4 — Article ll(8)(b) of the Agreement between the parties to the North Atlantic Treaty regarding the status of their 2 — Written observations of the Belgian Government, p. 7 of forces, signed at London on 19 June 1951 (Moniteur belge, the French translation. 15.3.1953, Annex 4; written observations of the Belgian 3 — Ibid., p. 8. Government, p. 14 of the French translation).

5. The answer to the first question gives rise to no difficulty. Under Article 10(1) of the 7. Such a distinction does not appear to be EEC Treaty 'products coming from a third relevant in Community law. The question of country' are considered to be in free circu­ proving that goods are Community goods is lation in a Member State 'if the import currently governed by Council Regulation formalities have been complied with and any (EEC) No 222/77 of 13 December 1976 on customs duties or charges having equivalent 7 Community transit. It should be stated effect which are payable have been levied in from the outset that Council Regulations that Member State, and if they have not 8 9 (EEC) Nos 678 / 85 and 679/85 of 18 benefited from a total or partial drawback of 5 February 1985 are not relevant to the such duties or charges'. That definition is discussion. Those regulations were referred unaffected by the fact that after customs to by the Belgian Government in its written duties have been paid and import formalities 10 observations, but they are applicable only complied with the goods are exported to from 1 January 1988 and can therefore have another Member State, as the Court stressed no bearing on the facts in the present the fundamental unity of the systems dispute. applicable to goods produced in a Member State and those in free circulation in that State when it stated, in its judgment in Peureux v Services fiscaux de la Haute-Saône et du Territoire de Belfort, that 8. Regulation No 222/77 applies to the movement of both Community and non-Community goods between two points u situated in the Community. It differen­ 'the prohibition of [restrictions] in intra­ tiates between two procedures for Community trade has the same scope as Community transit. n The first, referred to regards products imported from another as the procedure for external Community Member State after being in free circulation transit, covers essentially goods which do there as for those originating in the same not meet the requirements of Articles 9 and 6 Member State'. 10 of the Treaty, that is to say goods coming from non-member countries which are not in free circulation. The second, referred to as the procedure for internal 6. The second question referred to the Court appears to embrace two slightly 7 — OJ L 38, 9.2.1977, p. 1. different issues: one relating to proof that 8 — Simplifying formalities in trade in goods within the Community (OJ L 79, 21.3.1985, p. 1). goods found in a Member State are in free 9 — This regulation introduces a specimen declaration form to be used in trade in goods within the Community (OJ L 79, 5 — Emphasis added. 21.3.1985, p. 7).

Community transit, applies principally to their luggage, which are in Title VI of goods originating or in free circulation in Regulation No 222/77. Member States; such goods are referred to 12 as 'Community goods'. Article 1(4) of Regulation No 222/77 establishes a presumption that goods 'properly imported into the territory of a Member State across an internal frontier' are to be deemed to be 11. In that title, Article 49 of the regulation Community goods 'unless an external provides: 'The Community transit Community transit document is produced in procedure shall not be compulsory for the

16 9. As I pointed out in my Opinion in Case document . . . is produced'. C-l 17/88 Trend-Moden Textilhandels GmbH v Hauptzollamt Emmerich, other forms provided for in that regulation and in the implementing regulation, Commission 4 Regulation (EEC) No 223/77,' may also be used as proof that goods are Community 12. The questions before the Court in this goods. In the Community transit procedure, case turn, in my view, on the interpretation goods are presumed to have a Community of that provision. Article 1(4) of Regulation origin unless an external Community No 222/77 establishes, as I have said, the transport document is produced. It is that presumption that goods are Community presumption, in fact, which justifies the goods, subject to the provisions of Article possibility of subsequent production of 49(2). In order to establish that goods are of

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OPINION OF MR DARMON — CASE C-83/89

declaration. The actual nature of such 13. Such a view cannot be accepted. It pres­ evidence may vary greatly. I do not think upposes the drawing of a distinction the Court need define it. It might, however, between goods manufactured in the indicate what factors may not be taken into Community and those in free circulation, consideration. In its written observations, which is in no way permitted by Article 9(2) the Belgian Government states that 'it is of the Treaty and was indeed ruled out, as I clear from the facts of the case that doubts have pointed out, by the Court's judgment 18 arose as to whether the goods involved in Peureux. Therefore, although customs could be considered to be Community authorities may reject a traveller's goods, since Pioneer stereophonic declaration on the basis of certain 17 equipment is imported from Japan'. The previously obtained or immediately apparent Belgian Government thus considers that the evidence, that evidence may not consist mere fact that the brand name on the merely of the fact that the brand name on product implies that it was manufactured in the product implies that it was manu­ a non-member country is a factor such as to factured in a non-member country. I cast doubt on the accuracy of the propose that the Court should answer the declaration. second question to that effect.

14. I consider, therefore, that the Court should rule as follows:

'(1) Article 10(1) of the EEC Treaty provides that products coming from a non-member country are to be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State, and if they have not benefited from a total or partial drawback of such duties or charges.

(i) the importer declares them as Community goods and there is no doubt as to the accuracy of that declaration, or

(ii) he produces an internal Community transit document.

Doubt may not be cast on the accuracy of that declaration on the basis merely of the fact that the brand name on the goods declared implies that they were manufactured in a non-member country.'

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