C-119/92

COMMISSION v ITALY

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 13 October 1993 *

Mr President, already been the subject of the judgment Members of the Court, of 25 October 1979, 4 in which the Court was asked to examine the compatibility of certain of its provisions with Articles 30, 34 and 50 of the EEC Treaty, and not with any secondary legislation.

1. By an application lodged at the Court Registry on 13 April 1992, the Commission brought an action for a declaration that the Italian Republic had failed to fulfil its obliga­ 3. I shall briefly review here the relevant tions by adopting 'measures, provisions and provisions of Community and national law; practices' relating to customs declarations for a more detailed discussion, reference which were said to be incompatible with should be made to the Report for the Hear­ Regulations (EEC) No 222/77 1 (hereinafter ing. 5 referred to as 'the transit regulation') and 2 No 3632/85 (hereinafter referred to as 'the declaratory regulation'). It also claimed that the defendant had infringed Articles 9 and 12 of the EEC Treaty by approving mandatory tariffs for the business services of Italian cus­ I — The declaratory regulation toms forwarding agents.

8. Substantively, the Code provides that any (a) in one's own name and on one's own owner of goods may make a customs declar­ behalf; ation either directly (first paragraph of Article 56) or by representation, on condition that the representative is a registered customs agent (second paragraph of Article 40), or if not duly registered, that he is an employee of (b) in the name and on behalf of another the owner (first paragraph of Article 43). person (authorization with representa­ tion or 'direct' representation);

9. Under the second paragraph of Article 56 (c) in one's own name but on behalf of of the Code, anyone is deemed to be the another person (authorization without owner of the goods who presents them for representation or 'indirect' representa­ customs clearance or has possession of them tion). at the time of entry on to the customs terri­ tory or exit from that territory, which, according to the defendant, corresponds to the Community definition of 'declarant' by recourse to a legal fiction.

According to Article 3 (2), the option of authorization without representation may be exercised only if the Member States have so provided. In such cases, recourse to the option in (b) or (c) may be limited by them 10. Article 47 et seq. of the Code make pro­ to persons making customs declarations on a vision for the same authorization procedure self-employed basis, either as their principal and conditions for admission of self- occupation or as a secondary activity related employed and non-self-employed customs to another occupation. forwarding agents.

17. If the Court's case-law condemns any 13. As I pointed out earlier, the regulation measure, even though it may be in confor­ sets out to define, in a uniform manner mity, which transposes a regulation into throughout the Community, who may be national law, a Member State must not a for-

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tiori be allowed to maintain, as in this case, a 19. Merely to maintain in force a national provision which is inconsistent with Com­ provision which is incompatible with a munity law. Community regulation was condemned by 1 the Court, in Commission v Germany, 0in the following terms:

18. It follows from the Court's judgment in Zerbone v Amministrazione delle Finanze 6 dello Stato that '(...) if a provision of national law that is incompatible with a provision of the Treaty, even one directly applicable in the legal order of the Member States, is retained unchanged, this creates an ambiguous state of affairs by keeping the persons concerned 'by reason of the obligations imposed on in a state of uncertainty as to the possibility them by the Treaty Member States must not of relying on Community law; maintaining impede the direct effect of regulations or 7 such a provision in force therefore amounts other rules of Community law; to a failure by the State in question to com­ 1 ply with its obligations under the Treaty.' 1

the scrupulous observation of this duty is an indispensable requisite for the simultaneous and uniform application of Community 20. Thus, maintaining in force the provision regulations throughout the whole of the in question, through the retention of a defi­ Community; 8 nition which differs from that adopted by the relevant Community regulation, hinders the direct effect of that provision and consti­ tutes an obstacle to its uniform application on Community territory.

22. The dispute on this point is of a substan­ tive rather than a semantic nature. '(...) this possibility operates by way of the legal fiction contained in the second para­ graph of Article 56 of the Code and treats as owner the person who presents the goods or 23. Here the Commission is contesting not makes the declaration in his capacity as hav­ just the content of the Italian customs provi­ ing possession of them or by way of the legal sions, but also the practice which, in its view, concept of "indirect agent", whereby the amounts to a refusal to recognize that 'a per­ declarant acts on behalf of the owner but in son meeting the conditions of Article 2 of his own name and is jointly liable with the 14 the declaratory regulation can actually make owner (...)'. a declaration in his own name but on behalf of another person, independently of the form of representation reserved for customs for­ 12 warding agents'. 26. The circumstances in which the Court came to this conclusion deserve to be recalled.

one to make the declaration provided only 29. Let us say it would have been better if, that such person presents the goods to the in order to satisfy the requirement of trans­ customs or has possession of them when parency, the Italian Republic had not con­ they enter or leave the customs territory; this fined itself, following the entry into force of includes inter alia the carrier and those stor­ the declaratory regulation, to retaining in its ing the goods. It was also stated that the last range of legislative measures a provision sentence of Article 56, to the effect that which takes effect only by recourse to a "This is without prejudice, in every case, to 'legal fiction'. the right of the Customs to ascertain, for all the purposes of the present Code, the iden­ tity of the owner of the goods which are the subject of the customs transaction in ques­ tion", does not mean that the authorities 30. The Court's decision is, however, unam­ may refuse to accept the declaration of a per­ biguous. The second paragraph of Article 56 son who is not the owner who presents or of the Code, which is what the Commission has possession of the goods but is intended is contesting here, was deemed by the Court to allow the authorities to make the owner to introduce into Italian law the notion of jointly liable with the declarant for the duties making a customs declaration in one's own and penalties as is specified in Article 38 of name and on behalf of another person. 15 the Code.

31. In the absence of any fresh elements, duly supported by proof, the Court's analy­ sis must be upheld, since it has become con­ (...) clusive.

36. On the other hand, 'indirect' representa­ tion (Article 3(1) (c], which is referred to in the second paragraph of Article 56, does not C — Discrimination between legal and natu- require express authorization by virtue of ral persons the aforementioned legal fiction. It is not in any way restricted to customs agents only.

40. The third complaint, it will be recalled, 37. As they do not overlap, the aforemen­ concerns the alleged discrimination in the tioned provisions of the Code respect the Italian legislation between legal and natural option provided for in Article 3 (3) of the persons, the Commission taking the view declaratory regulation; no counter-argument that legal persons cannot make a customs can be derived from the circular issued by declaration in their own name and on their the Italian Ministry of Finance own behalf. on 10 August 1989, which reaffirms the pos­ sibility for 'holders of goods to carry out themselves the requisite customs operations in the absence of the owner of the goods, without availing themselves of the services of 17 a customs forwarding agent'. 41. It is true that the declaratory regulation does not distinguish between legal and natu­ ral persons when it comes to making decla­ rations. Both the former and the latter must 38. Any breach by this circular of have access, under the same conditions, to Council Regulation (EEC) No 1031/88 the various options provided for in Article 3.

17 — Annex IV to the reply, p. 1. 18 — OJ 1988 L 102, p. 5.

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42. There would, however, appear to be 46. It follows that this plea is unfounded. nothing in the Code to prevent legal persons from making declarations in their own name and on their own behalf.

45. It is true that Article 43 of the Code does not authorize him to make use for this purpose of an employee not specialized in 49. The Commission takes the view that malting customs declarations. Such a restric­ such restrictive conditions, imposed on cus­ tion, provision for which is made expressly toms agents and specialized employees alike, in Article 6 of the declaratory regulation, is are incompatible with Article 6 of the regula­ not incompatible with Community law. tion.

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COMMISSION v ITALY

50. I share that view, not because the rization, which must not impede proper requirements are the same, but because they access to the occupation in question. Since seem excessive where specialized employees that regulation makes a distinction with are concerned. regard to the scope for reviewing suitability, national legislation must not make the two occupations subject to the same require­ ments for authorization.

51. Article 6 makes the following distinc­ tion: while registered customs agents may be granted authorization by the competent authorities where they hold the requisite 54. The infringement would therefore professional qualifications and provide the appear to be established in that respect. guarantees required, specialized employees can only be required to produce evidence of a suitable professional qualification.

II — The transit regulation

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57. Article 13 of Regulation (EEC) by the German Minister for Economic No 1062/87 of 27 March 1987 provides in Affairs. that regard that:

'Any person named on the reverse of a guar­ 61. As those complaints had not been com­ antee certificate presented at an office of municated to the defendant, which disputes departure shall be considered the authorized the existence of the practice for which the agent of the principal'. customs authorities have been criticized, the Commission was compelled, at the stage of the rejoinder, to confine itself to a legal analysis of certain provisions of the Code, concluding that they were incompatible with 58. Under the transit regulation, the princi­ Community law. pal must furnish a guarantee in respect of a transit operation, which may be comprehen­ sive and cover a number of such operations (Article 27) . The guarantee (certificate) may therefore be provided in a Member State other than that in which the customs opera­ 62. That analysis is based on the second tions are to be carried out. paragraph of Article 238 of the Code which, by placing Community transit on the same footing as the customs operations referred to in Article 55, brings into operation the gen­ eral system of customs declarations and 59. It follows from those provisions that the 'hence the system of representation for cus- principal or his authorized agent may make a toms purposes, by virtue of the combined 22 customs declaration and submit it to any provisions of Articles 40 and 56'. customs office in the Community; this is not contested by the Italian Republic.

67. I therefore consider that no infringement 'The Community transit procedure shall be has been established in that respect. treated as equivalent to the customs opera­ tions provided for in Article 55, and shall have the same effect, so far as concerns the penalties and all other matters which are not provided for or regulated by Community regulations. However, that procedure shall III — Articles 9 and 12 of the Treaty not apply to transports of goods which are subject to customs duties and whose origin and point of arrival are in the customs terri­ tory or which are shipped from one national 23 port to another'. 68. The Commission claims that Articles 9 and 12 have been infringed in that the tariffs applied by customs forwarding agents are fixed by the public authority and constitute charges having equivalent effect to customs duties, that they are imposed on goods on crossing a frontier and are disproportionate 65. This provision therefore refers back to to the services rendered to the trader. Article 55 only in respect of situations which are not governed by Community regulations. Where such a regulation does exist, Article 238 ensures that it takes precedence and has direct effect. 69. It follows from the Court's case-law, which moreover is cited by the Commis­ 25 sion, and more particularly from the judg­ ment in Sociaal Fonds voor de 2 Diamantarbeiders, 6that

66. Admittedly, this might give rise to some uncertainty which, by itself, may constitute an infringement. However, that is not the approach I would suggest that the Court '... any pecuniary charge, however small and adopt, in so far as the Commission is basing whatever its designation and mode of appli- its argument on this point not on the ambiguous nature of Article 238, but on its substantive incompatibility with Article 13 24 — Sec, on this point, the Opinion of Advocate General Tesauro in Case C-323/90 Commission v Portugal [1992] ECR 1-1887, at p. 1898. 25 — French translation of the application, p. 26. 26 — Judgment in Joined Cases 2 and 3/69 [1969] ECR 211. Sec 23 — Emphasis added. also the judgment in Case 87/75 Bránam [1976] ECR 129.

71. Moreover, that is confirmed by the information given by the Commission in its Communication of 8 May 1992, 29 according 75. As I said earlier, the Commission has not to which 74% of declarations are made by produced any fresh information such as to cast doubt on that appraisal of the relevant provisions of the Code. Nor does the infor­ mation contained in the Commission's 27 — Paragraph 18. 28 — P. 33 of the French translation of the application. Cf. Also the points made on p. 25 of the French translation of the application. 29 — Document SEC (92) 887 final. 30 — Paragraph 14.

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COMMISSION v ITALY

abovementioned communication lead to the forwarding agents, but at most their domi­ conclusion that there has been any infringe­ nant position, which can be explained in par­ ment on that ground. ticular by the practical convenience of having recourse to a professional in such cases, and not by any statutory obligation to do so. 76. As regards the percentages set out in that document, the Italian Government maintains that the figure of 22% concerns holders and/or persons producing the goods to cus­ 78. In my view, therefore, no infringement 31 toms. has been established in that respect.

77. Since no firm evidence has been adduced in that regard, the Commission has not by 79. Having regard to the foregoing consider­ any means demonstrated the existence of a ations, it seems equitable that each party de facto monopoly on the part of customs should bear its own costs.

80. I therefore conclude that the Court should: