C-292/91

O P I N I O N O F MR VAN GERVEN — CASE C-292/91

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 10 December 1992 *

Mr President, Background Members of the Court,

1. This case concerns a request from the 2. In the framework of an authorization German Finanzgericht München for a pre­ granted to it for outward processing, Weis liminary ruling with regard to the scope of during 1986 and 1987 sent fabrics from Por­ Articles 366 and 368 of the Act concerning tugal via the German Zollamt Aschaffenburg the conditions of accession of the Kingdom (hereinafter 'the Zollamt') to the former of Spain and the Portuguese Republic and Yugoslavia, where they were processed into the adjustments to the Treaties 1 (hereinafter men's outer garments and were then 'the Act of Accession') in conjunction with returned to the Community via the same Article 1 of Regulation (EEC) N o 449/86, 2 Zollamt. and Article 1 of Protocol 3 to the Coopera­ tion Agreement signed at Belgrade o n 2 April 1980 between the European Econ­ omic Community and the Socialist Federal Republic of Yugoslavia (hereinafter 'the Agreement'), which was approved for the Upon outward customs clearance in Ger­ Community by Regulation (EEC) N o many of the unprocessed Portuguese goods, 314/83. 3 movement certificates filled in by Weis were produced to the Zollamt on each occasion for endorsement. Upon inward customs clearance in Germany of the goods processed The questions referred to the Court arose in in Yugoslavia, movement certificates made the course of a dispute between Gebrüder out by the Yugoslav authorities were Weis G m b H (the plaintiff in the main pro­ acknowledged on each occasion by the Zol­ ceedings, hereinafter 'Weis') and the Haupt- lamt as proof of origin and no customs zollamt Würzburg (the defendant in the duties were levied. main proceedings, hereinafter 'the Hauptzol- lamť).

5. It is common ground that the Portuguese products in question underwent more than The first question referred to the Court 'insufficient' processing in Yugoslavia. H o w - ever, the question is whether these products could be regarded as 'products originating in the Community'. The Hauptzollamt, sup- ported by the Commission in its written observations submitted to the Court, thinks 3. The Finanzgericht refers to Articles that they could not. It is true that Portugal 366 and 368 of the Act of Accession and to has been since 1 January 1986 a member of Article 1 of Regulation (EEC) No the Community 8but, during a transitional 449/86 and asks whether in 1986 goods period expiring on 31 December 1987, Por- obtained from Portugal in trade between tuguese products were still subject to certain Germany and Yugoslavia were to be customs duties within the Community. regarded as goods originating in the Com- According to the Hauptzollamt and the munity within the meaning of Article 1 of Commission, 9 Portuguese products could Protocol 3 to the Agreement. The Finanz- not yet be regarded during that transitional gericht also wishes to know to what extent period as 'products originating within the the answer to that question depends on Community' and thus assimilated to Yugo- whether or not the goods in question were slav products within the meaning of Article in free circulation within the Community 1(1) of Protocol 3 to the Agreement, so that 'as previously constituted'. 4 Article 15 of the Agreement was not applica- ble.

meaning of Article 1 of Protocol 3 to the States. That is expressly recognized in Arti- Agreement. That obligation to pay customs cles 366(1) and 368 of the Act of Accession, duties between the acceding and the other which provide that Portugal was to apply the Member States is a domestic matter which Agreement as from 1 January 1986, although cannot be raised against third countries. As subject to the rules defined in Article 367 of far as a third country such as Yugoslavia was the Act for cases in which, 'for reasons out- concerned, Portugal had been a full member side the control' of the Community or the of the Community since 1 January 1986 and Portuguese Republic, no agreement could be its products must therefore be regarded as reached with a third country with regard to 'products originating in the Community'. 10 transitional rules.

7. Against that point of view the Commis- The principle contained in Article 61 of the sion contends that at the time of the acces- Agreement is confirmed by Article 54(2) sion of Portugal to the Community on 1 Jan- thereof, which provides: uary 1986 the territorial sphere of application of the Agreement was not auto- matically extended to Portugal. That argu- ment — which was considerably toned down by the Commission in its answer to an inci- dental question raised by the Court — seems 'In the event of a third State acceding to the to me to conflict with Article 61 of the Community, appropriate consultations shall Agreement in conjunction with Article 54(2). be held within the Cooperation Council so that the interests of the Contracting Parties as defined by this Agreement may be taken into consideration.' 11

8. The objection might be raised that the Portuguese products too, after processing in granting to Portuguese products of the qual- Yugoslavia, qualify for exemption from cus- ity of 'products originating in the Commu- toms duties on (re)importation into the nity' in trade with Yugoslavia would auto- Community, that is advantageous to the matically increase, for products from former economy of Yugoslavia, where the working third countries, in this case Portugal, free or processing of those products creates extra access to Yugoslavia. However, that is incor- employment and income. rect since Yugoslavia, according to Article 29(2) of the Agreement, is not obliged to grant free access to products from the Com- munity but on the other hand may, under the said Article 54(2) of the Agreement, hold consultations with the Community. It would 9. I therefore come to the conclusion, on the also have been possible, if desired, to agree basis of both the wording and the aims of on transitional rules pursuant to Article the Agreement, 13 that in 1986 Portuguese 367 of the Act. products were to be regarded as 'products originating in the Community' within the meaning of Article 1 of Protocol 3 to the Agreement. In that connection no impor- tance should be attached to the question whether or not the products, after transport from Portugal to Germany, were in free cir- culation within the original Community, in view of the fact that other factors already described determine the quality of 'products originating in the Community'. 14

authorities in exempting Weis's products 12. The Finanzgericht is asking the Court to from customs duties. In dealing with the first interpret the second condition. With regard question referred to the Court I have already- to that condition the Court decided in the stated that in my opinion the exemptions in Foto-Frost judgment that a person liable this case could not be regarded as an error must be regarded as having acted in good (section 6 et seq. above). However, in case faith where 'specialist judges' — that case the Court should decide otherwise, I never- also concerned a German Finanzgericht — theless wish to consider the Finanzgericht's 'expressed the view that it was very doubtful second question. whether duty was payable on operations of the type at issue'. 18 According to the Court that applies a fortiori 'since previous opera- tions had been granted exemption from duty'. 19

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WEIS v HAUPTZOLLAMT WÜRZBURG

question referred to the Court it may be seen 14. Like the Commission and the Finanz- with sufficient clarity that from a reading of gericht I conclude therefore that a trader who the Official Journal alone Weis could not has acted as Weis did has acted in good faith have deduced whether or not it was possible within the meaning of Article 5(2) of Coun- to rely on Article 15 of the Agreement. cil Regulation No 1697/79 of 24 July 1979.

Conclusion

15. I propose that the Court should reply as follows to the questions referred to it for a preliminary ruling:

(1) Articles 366 to 368 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties and Article 1 of Regulation (EEC) N o 449/86 of 24 February 1986 should be interpreted as meaning that products originating in Portugal which in 1986 were exported via the Federal Republic of Germany to Yugo- slavia for the purpose of processing should be considered, in trade between the Federal Republic of Germany and Yugoslavia, as products originating in the Community within the meaning of Article 1 of Protocol 3 to the agreement signed on 2 April 1980 between the Community and the Socialist Federal Republic of Yugoslavia. The question as to whether or not, when they were sent from Portugal to the Federal Republic of Germany, the products were in free circulation in the Community is not relevant in this case.