C-334/90

OPINION OF MR JACOBS —CASE C-334/90

OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 28 November 1991 *

My Lords, No 495/79 of 14 March 1979 (Official Journal 1979 L 65, p. 14), and was re-enacted in the legislation applicable during the period in which the transactions at issue took place, namely Commission Regulation No 2901/81 of 7 October 1981 (Official Journal 1981 L 288, p. 1), 1. Monetary compensatory amounts Commission Regulation No 1071/82 of 5 ('MCAs') are sums to be paid or charged by May 1982 (Official Journal 1982 L 124, Member States on the importation or p. 1) and Commission Regulation exportation of certain agricultural products. No 1235/82 of 19 May 1982 (Official MCAs are designed to compensate for Journal 1982 L 142, p. 1). It should be market distortions which may be produced noted however that Regulation No 2901/81 by fluctuations in rates of exchange. Thus, if was not in fact applicable to the transactions the currency of the Member State of at issue in this case, since that regulation did importation appreciates, a sum is payable by not fix any MCAs for imports into Belgium. the importer in order to compensate for the Thus, no MCAs were payable in any event fact that the products have become cheaper before Regulation No 1071/82 came into in terms of that currency, whereas if it force on 6 May 1982. depreciates a sum is payable to the importer to compensate for the fact that the products have become more expensive. In the present case, animal feedingstuffs were imported from France into Belgium in a period in which the value of the Belgian franc had depreciated. 3. In all three regulations in which it was re-enacted, the rule appears as note (9) to Part 1 of Annex I to the regulation. According to that provision:

5. In the present case, Manchal failed to the applicant must state in the declaration make such a declaration of composition to provided for this purpose the complete the Belgian authorities when completing composition of the product and the exact customs formalities at the time of content by weight of non-milk constituents importation, although it appears that infor- broken down by tariff heading.' mation in respect of the same product was supplied, albeit for a different purpose, to the French authorities in 1978, and a copy of that earlier declaration was supplied to I shall refer to the above provision as the the Belgian authorities on 9 January 1984. 'cereal content rule'. In the main proceedings, the Belgian State, represented by the Minister of Economic Affairs, seeks to recover MCAs paid in respect of importations in the period 5 4. Thus, the cereal content rule had the March 1982 to 2 February 1983, and to effect of reducing MCAs payable to an continue to withhold payments in respect of imponer in respect of the importation of the importations made between 8 February 1983 compound feedingstuffs in question. If the and 17 May 1983, in each case on the product contained any of the specified ground that Marichal failed to make the constituents (namely those falling under appropriate declaration. In response to a tariff heading 07.06 or subheading 11.04 C), written question put by the Court, the no MCAs were payable on any of the cereal Belgian Government explained that the content (whether or not that content amounts which had been paid had been paid included cereals in addition to the ones without any prior verification of entit- specified). Furthermore, where the cereal lement, in consequence of an administrative content was greater than 50% by weight, it error. appears that no MCAs were payable on any of the constituents. The explanation for this given by the Commission at the hearing was that such a product is classified as a cereal for the purpose of fixing MCAs, and hence 6. The Court of First Instance of Verviers attracts MCAs only on the cereal consti- (Belgium) has accordingly referred the tuents. It can be seen, therefore, that the following questions to the Court for a correct MCA could not be calculated unless preliminary ruling:

2. If the reply to the first question is in the negative, does it follow from the rules of (d) insofar as it is necessary for determining Community law that the operator in the monetary compensatory amount, question may rectify the matter particulars of the composition of the subsequently by supplying the prescribed products.' information to the national authorities which are responsible for calculating and granting the monetary compensatory amounts in question? Section E of Title I I (Articles 16 and 17) is headed 'Payment'. Article 16(1) provides that:

It should be noted that the six subheadings The monetary compensatory amount to be mentioned in the first question are each granted on impon shall be paid only on subheadings to which the cereal content rule submission of a copy of the impon entry applied at the relevant times, although as I and, where applicable, any relevant attached have already mentioned it appears that the documents, indicating the particulars imported products in the present case all fell referred to in Article 6 and that the under subheading 23.07 B I c)l. products have been imported . . . '.

I - 116

BELGIUM v MARICHAL-MARGRfVE

10. In the Order for Reference, the referring court suggests that the customs authorities had notice of the importer's ..." intention to claim MCAs, and should have realized that the composition of the imported products was relevant to that claim. According to that view, the absence of a declaration made at the time of import did not preclude any necessary checks being 8. From those provisions, it appears that an carried out, since the authorities had the importer is only entitled to claim MCAs if opportunity of taking and retaining a he submits, within 12 months of acceptance sample of the product which could then be of entry, a copy of the documents attached used to verify any subsequent declaration. to the import entry which indicate the The referring court also suggests that it was particulars referred to in Article 6. Thus, the responsibility of the customs authorities where details of the composition of the to draw any applicable formalities to the products are necessary for determining attention of the importer. MCAs, the importer must submit a copy of the document attached to the import entry which indicates those particulars. It follows that, where the cereal content rule applies, a copy of the declaration prescribed by that rule must be submitted. On a stria and literal reading of Regulation No 1371/81, 11. The Commission, on the other hand, therefore, an importer who has failed to submits that any reasonably diligent make such a declaration at the time of operator should have been aware of the customs entry will be unable to qualify for requirements in question. The Commission payment of MCAs, since he will be unable also points out that, given the large number to submit a prescribed document. of operations which have to be processed by

12. h seems to me that the Commission's 14. Finally, as the Commission points out, it submissions have much force. If an importer is clear that an operator cannot rely on the makes a declaration of content, the customs principle of the protection of legitimate authorities are alerted to the fact that the expectations in order to retain amounts accuracy of such a declaration may be which have been mistakenly paid by the relevant to a claim for MCAs, and can national authorities in breach of a precise accordingly put into operation any sampling provision of Community law: see Case procedures which are in place. In the 316/86 Hauptzollamt Hamburg-Jonas v absence of such a declaration, it would fall Krücken [1988] ECR 2213, paragraphs to the authorities to notice that the infor- 23-24 of die judgment. mation was relevant. Given the large numbers of products of all types which are dealt with by the customs authorities, that would in my opinion be to require an excessive degree of vigilance on the part of possibly hard-pressed officials. The importer, in contrast, has a narrower range of products to deal with, and can reasonably 15. In my opinion, therefore, the first be expected to have knowledge of the question referred should be answered in the special requirements governing each. affirmative, and there is accordingly no need to consider the second question. If however, contrary to my view, it were possible to rectify the omission after the goods had been imported, it is clear that that could only be done by the importer 13. It seems to me that there is much force, supplying the prescribed information to the equally, in the Commission's argument that responsible authorities within 12 months of a subsequent control of product compo- acceptance of import entry: see Article 17(2) sition would be both more difficult and less of Regulation No 1371/81, cited above at effective than a system of declaration and paragraph 7. In the present case, therefore, sampling at the time of import. It is true where information was not supplied until 9 that the constituents of a product can, in January 1984, entitlement to MCAs would principle, be ascertained from information be lost in respect of any imports made provided by the manufacturer, just as, in before 9 January 1983.