Súdny dvor Európskej únie·13.12.1991

C-323/90

ECLI:EU:C:1991:486

Súd: Súdny dvor Európskej únie
IČS: 61990CC0323
Zdroj: eur-lex.europa.eu ↗

OPINION OF MR TESAURO —CASE C-323/90

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 13 December 1991 *

Mr President, any person able to produce or cause to be Members of the Court, produced to the competent customs authority both the goods in question and the documents stipulated. Under Article 3, the person concerned may make the declaration in one of three ways:

The subject-matter of these proceedings is the Portuguese legislation on the making of customs declarations on behalf of another person by a category of traders, namely (a) in his own name and on his own behalf; forwarding undertakings, who are in competition — as regards the provision of that service — with official customs agents. In the Commission's view, that legislation is incompatible with Regulation (EEC) No 3632/85 inasmuch as it prohibits forwarding (b) in the name and on behalf of another undertakings from making customs declar person, and therefore as an agent with ations on behalf of another person, at least representation; as a regular part of their activity.

(c) in his own name but on behalf of another person, as an agent without Let me briefly summarize the essential representation. provisions of the relevant Community and national legislation, the rest of which is set out in the Report for the Hearing.

Article 3(2) lays down, however, that the option referred to in (c) may be exercised only if the Member States have so provided.

The Community system

Where a Member State authorizes customs declarations to be made by persons in their Regulation No 3632/85 lays down the own name but on behalf of another person, conditions under which a person may be Article 3(3) lays down that that State may allowed to make customs declarations. To limit to persons pursuing the activity of that end, Article 2 of the regulation lays making customs declarations on a self- down that the declaration may be made by employed basis (either as their principal

* Original language: Italian.

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occupation or as a secondary activity) the Secondly, the Portuguese legislation right: provides for a specific professional category, namely the official customs agents referred to in Article 426(4) of the Customs Reform Law, 1 to pursue the activity of making (a) either to make declarations in the name customs declarations on behalf of another. and on behalf of another person or, They are the only ones who are permitted alternatively, by law to act as agents without represen tation and are therefore guaranteed the exclusive right to undertake that kind of agency. They may also act as agents with (b) to make declarations in their own name representation. but on behalf of another person.

In addition, Article 6 provides that the regu Thirdly, it is also undisputed that the legis lation does not preclude the application of lation in question permits persons other than national provisions which limit, in official agents to make customs declarations 2 accordance with Article 3(3), pursuit of the on behalf of another person, but subject to activity of making customs declarations a twofold restriction: either in the name and on behalf of another person or in their own name but on behalf of another person, to persons authorized to pursue such an activity by the competent authorities of the Member State concerned, such persons may act only in the name and on conditions laid down by the latter with on behalf of another person, since agency regard specifically to the professional quali without representation is reserved exclu fications required and the guarantees sively to official agents; deemed necessary for the pursuit of the activity.

such persons, unlike official agents, may not National legislation make declarations as a regular part of their activity, inasmuch as they are authorized to represent only one principal, as opposed to several. As regards the national legislation relevant to this case, I shall confine myself to its salient features.

Fourthly, as regards forwarding under takings in particular, which are commercial To begin with, the Portuguese customs undertakings whose activities are governed system provides that a customs declaration by Decree Law No 43 of 25 January 1988, may be made either by an agent with repre sentation or by an agent without represen 1 — Decree Law No 46311 of 27 April 1965, as amended by Decree Law No 450 of 7 October 1980. tation (as well as, evidently, by a person in 2 — These are persons authorized under Anicie 426(1), (2) and his own name and on his own behalf). (3) of the Customs Reform Law.

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Article 7(4) of that decree provides that The Portuguese Government acknowledges 'they may not carry on the activity referred that Article 7(4) would be incompatible with to in Article 426' of the Customs Reform the regulation if it absolutely prohibited Law, that is to say the making of customs forwarding undertakings from acting as declarations. agents. However, it maintains by way of reply that the Commission's allegation is unfounded precisely because it is based on a misinterpretation of the national legislation in question. Notwithstanding its wording, Article 7 does not impose an absolute The arguments of the parties prohibition on forwarding agents making customs declarations on behalf of another person. If interpreted systematically, that is to say in the light of the general provisions set out in the Customs Reform Law, the provision in question merely seeks to These infringement proceedings turn in prevent forwarding agents from doing so as point of fact on the compatibility of Article a regular part of their activity. Accordingly, 7(4) of Decree No 43/83 with Article 3(3) forwarding agents may, by analogy with the of Regulation No 3632/85. other persons referred to in Article 426 of the Customs Reform Law, make declar ations in the name and on behalf of another person, but they are authorized exclusively to represent a single principal. The Commission claims in that regard that Article 7(4) imposes an absolute prohibition on forwarding agents making customs declarations. Accordingly, they may not act either as agents without representation (a kind of agency which, in any event, is As I said earlier, the Commission's rejoinder reserved by the Portuguese legislation to to that argument is that even on the official customs agents alone) or as agents assumption that Article 7(4) has the scope with representation. ascribed to it by the Portuguese Government, that is insufficient to remedy the infringement alleged.

That situation is evidently incompatible with Article 3(3) of the regulation. That provision, according to the Commission, permits the Member States to reserve to a According to the Commission, Article 3(3) given professional category only one of the of Regulation No 3632/85 ensures that one two kinds of agency. The other kind, of the two kinds of agency is not reserved however, may not be subject to an exclusive to a professional category and may reservation and must therefore be freely therefore be freely undertaken by the accessible to all the traders concerned. In traders concerned. Since the regulation does those circumstances, the effect of Article not set any limits thereto, it must be possible 7(4) of Decree No 43/83 is to preclude for them to undertake the kind of agency forwarding undertakings from acting under not covered by the reservation as a regular either kind of agency. part of their activity as well. Accordingly, the

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restriction imposed by the Portuguese legis It is also true, however, that the Portuguese lation is in any event incompatible with the Government has given assurances that Community legislation. Article 7(4) has never been so construed and applied. In other words, forwarding agents have never been prohibited in practice from making declarations in the name and on The scope of Article 7(4) of Decree No behalf of another person, but only from 43/83 doing so as a regular part of their activity.

With regard to the interpretation of Article 7(4), I would point out that at the hearing the Commission laid emphasis on the It should also be pointed out that the absolute prohibition which the provision Commission has not provided any evidence imposes on forwarding agents malung to refute that assertion. In particular, it has customs declarations, whereas the defendant made no reference either to an adminis Government promptly reaffirmed that trative procedure or even to a single specific forwarding agents may make such declar case in which a forwarding agent has been ations in the name and on behalf of another prohibited from making declarations in the person, provided they do not do so as a name and on behalf of another person regular part of their activity. otherwise than as a regular part of his activity. And it must be emphasized that it would not in all probability have been excessively difficult for the Commission to In view of that difference of opinion, it obtain evidence of that kind, in view of the seems to me that neither the documents fact that it acted in cooperation with the before the Court nor the oral procedure forwarding agents concerned, whose have made it possible to dispel the doubts complaint, moreover, lies at the root of which exist in that regard and to establish these proceedings. the actual scope of the contested provision with any degree of certainty.

It seems to me, therefore, that in the It is true that the wording of that provision, circumstances the scope of the contested in so far as it lays down in general terms legislation has not been clearly established, and without further qualification that and the Court cannot therefore declare that forwarding agents may not carry on the the Portuguese Republic has infringed activity referred to in Article 426 of the Community law by maintaining in force Customs Reform Law, would seem to bear legislation which absolutely precludes a out the Commission's interpretation. category of traders, namely forwarding undertakings, from making a customs declaration in the name and on behalf of Article 426 specifies the different categories another person. of persons who are authorized to make customs declarations. If a logical approach is taken, therefore, the restriction referred to in Article 7(4) would in fact appear to be aimed at excluding forwarding agents from This does not mean, however, that the those classes of persons. application must be dismissed.

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In that regard, it may be observed in the of Regulation No 3632/85, which would first place that the wording of Article 7(4) is persist — according to the Commission — ambiguous to say the least, in so far as it even if Article 7(4) in fact had the scope may objectively convey the impression that ascribed to it by the defendant Government. forwarding agents are absolutely prohibited from making customs declarations. Accordingly, that provision is open to criticism at least in so far as it does not provide the requisite degree of legal certainty, thereby preventing those to whom it is addressed, and third parties in general, from taking full cognizance of the scope of Moreover, that is the reason why the their rights. Commission itself, although well aware ever since the pre-litigation procedure (as is clear from the letter of formal notice) of the lack of clarity of Article 7(4), has not requested the Court, in the alternative, to give a decision on that point, and consequently declare that the Portuguese Republic has That uncertainty could constitute in itself a failed to fulfil its obligations under failure to fulfil obligations under Community law by maintaining in force an Community law since the right of a ambiguous provision which, in view of its forwarding agent, as of any other unofficial wording, could be interpreted as wholly trader, to make customs declarations on denying to certain traders rights which are behalf of another person is recognized by guaranteed to them by Community legis Article 3(3) of Regulation No 3632/85. It lation. follows that the uncertainty resulting from the wording of the provision may adversely affect the exercise of rights guaranteed by Community law, which, as is clear from the case-law of the Court concerning the implementation of directives, amounts to an incorrect application of the relevant provisions of Community law (see, most recently, the Court's judgment of What the Commission is asking the Court 28 February 1991 in Case 131/88 to establish — although this is not speci Commission v Federal Republic of Germany fically set out in the form of order sought [1991] ECR 1-865). by the applicant — is that Article 7(4), even if it were construed in the manner indicated by the Portuguese Government, would still be incompatible with Article 3(3) of Regu lation No 3632/85. Accordingly, the question which needs to be examined is whether the provisions of Article 7(4), inter Having said that, however, I do not think preted in conjunction with those of the that is the approach which should be taken Customs Reform Law, conflict with the in this case. The subject-matter of these aforesaid regulation in so far as they prevent proceedings is not the uncertain and a category of traders, namely forwarding ambiguous nature of the provisions of undertakings, from making customs declar Article 7(4) of Decree No 43/83 but their ations in the name and on behalf of another substantive incompatibility with Article 3(3) person as a regular part of their activity.

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The scope of Article 3(3) of Regulation No regulation, which, moreover, is in keeping 3632/85 with the views expressed by the Court in its judgment of 25 October 1979 in Case 159/78 (Commission v Italy [1979] ECR 3247), is therefore designed to ensure that importers are not compelled to resort exclusively to official agents in order to In that regard, it may be advisable to point make customs declarations but enjoy some out that, as the Commission emphasized at freedom of choice amongst the various the hearing, Regulation No 3632/85 types of competitors. constitutes the point at which two different systems of regulating customs declarations converge. The negotiations involved States in which that activity is reserved exclusively to a given professional category and those Furthermore, that aim is quite consistent in which no such reservation exists and in with the wider requirement of safeguarding which any trader can therefore make declar the free movement of goods. The need to ations on behalf of another person. 'pass' through the intermediary of official agents in fact leads to a waste of resources and, above all, an increase in costs which has an adverse impact on the imported goods. Viewed against that background, the rationale of Article 3(3) of the regulation is quite apparent. That provision constitutes a compromise solution designed, as far as possible, to reconcile two requirements. On It is self-evident, moreover, that if the the one hand, it makes it possible to rationale of Article 3(3) consists in guaran maintain a reservation in favour of official teeing to importers, albeit under a specified customs agents, on the other it expressly kind of agency, the freedom to resort where limits that reservation to no more than one appropriate to agents other than official of the two kinds of agency, thereby agents, it must be possible for that choice to ensuring the development of freedom of be made in an effective manner. This means competition amongst the traders in question that it must be possible for agents other with regard to the kind of agency not than official agents to make declarations as covered by the exclusive reservation. a regular part of their activity.

I would even go so far as to say that if In other words Article 3(3) provides limited, (unofficial) agents, who are already placed even minimal, recognition to the at a disadvantage by reason of the fact that professional category of official customs they are allowed to act under only one kind agents, inasmuch as it is aimed at preventing of agency, were also precluded from making them from obtaining an absolute monopoly customs declarations as a regular part of their over the service in question which would activity, importers would in effect be guarantee them in some measure an income deprived of any freedom of choice. If an by virtue of their position whose effects on (unofficial) agent were not allowed to intra-Community trade could only be represent more than one importer, the detrimental. The system established by the possibility for importers to have recourse to

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agents other than official agents would be Admittedly, it may be true, as the limited to such an extent as not to constitute Portuguese Government states, that the in commercial terms a genuine and effective interpretation put forward here appreciably alternative to official agents themselves. restricts the freedom of action of official agents. It may not suit traders who avail themselves of the services of a forwarding I therefore consider that, in accordance with agent for the importation of goods to have its rationale, Article 3(3) provides for and recourse to an official agent for the customs ensures a practical alternative between declaration since the forwarding agent official agents and others (albeit as regards himself can also represent them for the the kind of agency not subject to reser completion of the formalities relating to that vation). declaration.

It follows that if — as the Portuguese Government maintains — the aim of Article Nevertheless, in my view, such difficulties 7(4) of Decree No 43/83, interpreted in cannot have any effect on the interpretation conjunction with the provisions of the of Article 3(3). That article — as repeatedly Customs Reform Law, is merely to restrict emphasized-—-is certainly not designed to the making of customs declarations by provide official agents (who are in any event forwarding agents as a regular part of their guaranteed an exclusive reservation with activity, such a restriction is in any event regard to one of the two kinds of agency) incompatible with Article 3(3) of Regulation with an income by virtue of their position; No 3632/85. That restriction means that the instead its purpose is to give importers alternative between official agents and rival effective freedom of choice which, not being operators is merely potential and is of no of a purely formal nature, must be capable practical value. of being exercised on a professional basis.

Conclusion

In the light of the foregoing considerations, I suggest that the Court :

1. declare that the Portuguese Republic has failed to fulfil its obligations under Regulation No 3632 / 85 inasmuch as Article 7(4) of Decree Law No 43 of 25 January 1983 prevents a category of traders , namely forwarding under takings, from making customs declarations in the name and on behalf of another person as a regular part of their activity;

2. order the Portuguese Republic to pay the costs.

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