C-351/93

OPINION OF MR VAN GERVEN — JOINED CASES C-351/93, C-352/93 AND C-353/93

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 27 September 1994 "

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validity of the regulations used as a basis for — 12 January 1989: confirmation of sale of levying the countervailing charges on several consignments of raisins sent by imports (Case 77/86, which I will discuss Stolp to Izmir Fig Packers, a company below). Secondly, the criminal investigation established in Izmir, Turkey; the agreed against one of the undertakings concerned, price is USD 1 050 per tonne (namely Stolp BV, was still proceeding, in particular below the minimum import price), the in Switzerland. Finally, attempts were first delivery terms being 'free declared, duty made to combat the fraud concerning the paid, FOT (Free On Truck) Rotterdam'; import of dried grapes on a wider basis, since it was thought that there was no point in dis­ mantling an isolated legal construction, where a similar construction could be set up again elsewhere almost immediately.

— 17 January 1989: sales invoice from Izmir Fig Packers to Stolp relating to 1 500 boxes of dried grapes aboard the 'Karaman' for an agreed price of USD 1 050 per tonne (below the mini­ 3. In order to illustrate the mechanism mum import price), delivery terms being adopted, I will set out in detail the facts of 'ex terminal Rotterdam'; the simpler of the two cases, namely Case C-351/93. It concerns the import of a single consignment of 1 500 12.5 kg boxes of dried grapes 'sultanas — special clean', a total net weight of 18 750 kg, sent from Turkey to Rotterdam on the 'Karaman'. In the file sent to the Court by the national court are the following documents:

— 25 January 1989: an invoice from Fitmay It is apparent from the investigation by the to Izmir Fig Packers concerning Fiscal Inquiries and Investigations Service 18 750 kg of Turkish sultanas at a price of that Alpaslan Besikcioglu owns 99% of USD 1 212 per tonne, on terms 'CF Rot­ Izmir Fig Packers, the remaining 1% being terdam'; owned by a Mr Kemal Besikcioglu. The reg­ istered office of Alpaslan Besikcioglu is at the same address in Izmir as that of Izmir Fig Packers. Regular transfers are made by Alpaslan Besikcioglu to the London bank account of Izmir Fig Packers in order to — 15 February 1989: a declaration of entry make good the deficit resulting from the into free circulation of 1 500 boxes of resale at a loss (in the present case, Izmir Fig dried grapes on board the 'Karaman', Packers bought from Fitmay at a price of made in the name of Fitmay by customs USD 1 212 per tonne and resold to Stolp at agent Van der Linde, established in Rot­ USD 1 050). At a hearing, the owner and terdam; the stated import price is HFL director of Fitmay, a Turkish national, stated 2 544 per tonne; that he had agreed to deal with the formal­ ities for the import of raisins into the Com­ munity, through the intermediary of Mr Van der Linde, in return for a payment of 1% of the net cost of the goods.

— 15 February 1989, namely on that same day: an invoice for the sale of 1 500 boxes 'ex Karaman' from Stolp to Verkade, for the agreed price of HFL 2.15 per kilo, namely HFL 2 150 per tonne;

assessed on a flat-rate basis at a given 5. If the rules applicable are considered in amount per container. The remaining chronological order, it can be seen that from amount, converted into ecus, enabled him to 1 April 1977 to 28 February 1986 the basic fix the countervailing charged owed per regulation is Council Regulation (EEC) No tonne in accordance with Regulation (EEC) 516/77 of 14 March 1977 on the common No 3519/88, ' which fixed the rates appli­ organization of the market in products pro­ cable at the time of entry into free circulation. 2 cessed from fruit and vegetables. Article He then made a complex calculation which 14(1) of that regulation provides for the pos­ enabled him to determine the import price sibility of appropriate protective measures prior to the countervailing charge. being applied in trade with non-member countries if, by reason of imports or exports, the Community market in one or more of the products to which the regulation applies is or is likely to be exposed to serious distur­ bances which might endanger the objectives set out in Article 39 of the Treaty. 4. In Case C-352/93 the process and the par­ ties involved are exactly the same. The decla­ ration of entry into free circulation is dated 25 June 1984 and relates to the import of 13 containers of raisins (241 900 kg net). The fiscal investigation terminated on 9 February 1989 and a countervailing charge was claimed from Mr Van der Linde. The calcula­ tion of the charge is much more complex, having regard to the rules which were in force at the time of importation.

Following disturbances on the dried grape market during the 1981/1982 marketing year, 6. The validity of Regulation No the Commission adopted Regulation (EEC) 2742/82 and, more particularly the amount 4 No 2742/82, Article 2 of which provides of the countervailing charge, were challenged 7 8 for a minimum price of ECU 106.7 per in Cases 77/86 and 291/86 ('dried grapes'). 100 kg net and a countervailing charge of Amongst other things, the importers of dried ECU 16.0 per 100 kg net if the minimum grapes contested the fixed nature of the price is not observed. A system of coeffi­ countervailing charge, observing that it cients aims to avoid distortions of competi­ would have been sufficient to fix that charge tion from monetary fluctuations. The coun­ at a rate equal to the difference between the tervailing charge is due when the import minimum price and the import price. There price is lower than the minimum price appli­ was even less justification for such a fixed- cable on the day of import. Under Article rate charge since as a result of the exchange 5 4(1), the import price is established by the rate fluctuations and the frequent variations following factors: (a) the fob price in the in the minimum prices, which resulted in country of origin; and (b) transportation and particular from the system of coefficients, it insurance costs up to the place of entry into was not possible, when the goods were sold, the Community customs territory. Article to determine with certainty what the mini­ 6 4(3), provides: mum price and the import price were when the goods had been placed in free circulation. The Commission explained that the amount of the countervailing charge had been calcu­ lated by subtracting from the minimum price the lowest price on the world market, because it was necessary to take account of the world market prices which were the most likely to cause disturbances on the 'If the invoice presented to the customs Community's internal market. Since the authorities has not been drawn up by the Court considered that the introduction of a exporter in the country in which the prod­ single, fixed-rate countervailing charge,

imposed even where the difference between van Beroep voor het Bedrijfsleven, referred the import price and the minimum price was the following questions for a preliminary very small, amounted to an economic pen­ ruling by order of 23 April 1993: alty, and that the Commission had not estab­ lished that such a system was necessary for attaining the objective of Regulation No 521/77, it declared Regulation No 2742/82 to be invalid 'in so far as it introduced a coun­ tervailing charge at a fixed rate equal to the difference between the minimum price and the lowest world-market price'. *1. Must Regulation (EEC) No 994/88 be interpreted as meaning that that regulation, in place of the provision in Regulation (EEC) No 2742/82 which was declared invalid by the judgment of 11 February 1988 of the Court of Justice in Case 77/86, is to be regarded as the legally valid basis for the calculation of a countervailing charge which is levied for the first time? Following the Court's judgment in Case 77/86, the Commission adopted Regulation (EEC) No 994/88, ' which set out the Com­ munity rules applicable to the reimburse­ ment of amounts wrongly paid and stated that operators had a right to reimbursement of the difference between the amount of the countervailing charge levied pursuant to 2. If the answer to Question 1 is in the affir­ Regulation (EEC) No 2742/82 and the mative, must the abovementioned regulation amount resulting from the difference be interpreted as meaning that the counter­ between the minimum price applicable as vailing charge must be calculated on the dif­ fixed under Regulation No 2742/82 and the ference between the minimum import price import price on release for free circulation. and the established import price, or must the flat-rate charge rate declared invalid be taken as the starting point in order if necessary to rectify it afterwards under the provisions of the aforementioned regulation?

— transactions other than the transac­ tions between exporter and importer which, in the authorities' opinion 8. By Article 4a of Regulation No 516/77, as 10 were either exclusively or partly inserted by Regulation (EEC) No 988/84, aimed at ensuring that no countervail­ the Council established the principle of a ing charge had to be paid upon impor­ minimum import price for dried grapes for tation, or which, in any event, would each marketing year and reserved the right to not have been carried out if they had adopt general implementing rules which not made the collection of the coun­ might inter alia provide for a system of tervailing charge wholly or partly advance fixing of the minimum import price. impossible, The minimum import price is therefore not imposed as a protective measure, but is

10 — Regulation of 31 March 1984 amending Regulation (EEC) No 516/77 on the common organization of the market in products processed from fruit and vegetables and Regula­ tion (EEC) No 950/68 on the common customs tariff (OJ and 1984 L 103, p. 11).

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instead permanent. There are identical provi­ of origin and other costs incurred in that sions in Article 9 of Regulation No 426/86, country. The fob price does not include the the basic regulation which replaced Regula­ cost of any services to be borne by the seller tion No 516/77 with effect from 1 March from the time that the products are placed 1986. on board the means of transport. With regard to the determination of the import price, Article 2 of the regulation provides that it is to be declared on the entry for release for free circulation which is to be accompanied by all the documents required to verify the price. Under Article 2(3):

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(c) if payment has not been effected within (a) facts may be collected exclusively in the time-limit ..., order to determine which import price actually was agreed and paid, directly or indirectly, between the exporter and the importer;

take the necessary measures to determine the or that import price, in particular by reference to the importer's resale price.'

(b) the competent authorities are at liberty themselves to reconstruct an import price, within the meaning of Article 1(2) of Regulation (EEC) 9. It is on the subject of those provisions No 2237/85, for the transaction in applicable to the entry for release for free question and in so doing take circulation in February 1989 that the College account of van Beroep voor het Bedrijfsleven referred the following questions to the Court for a preliminary ruling. For the sake of complete­ ness, I set out their wording, but, with the exception of the applicable provisions, it does not differ from Questions 3 and 4 of — transactions other than the Case C-352/93: transactions between exporter and importer which, in the authority's opinion, were either exclusively or partly aimed at ensuring that no countervailing charge had to be paid on impor­ tation, or which in any event would not have been carried out if they had not made the collec­ '(1) Must Article 2(3)(b) of Commission tion of the countervailing charge Regulation (EEC) No 2237/85, in wholly or partly impossible, conjunction with Article 9 of Council Regulation (EEC) No 426/86, be interpreted as meaning that if the competent authorities are not satisfied that the price declared in the entry for release for free circulation reflects the actual import price, and

The Morello cherry case (C-353/93)

Facts

The file sent to the Court does not show that the price paid by Mondifoods, whether to the Austrian company or to the German 10. This case concerns the import between bank account of a Yugoslavian undertaking, December 1986 and August 1988 of Morello was below the minimum import price. On cherries originating in what used to be Yugo­ slavia. Tracotex Holland B. V, a customs agent, acted on behalf of De Leeuw's Han­ delsonderneming B. V. (now Mondifoods B. 14 — According to the file sent to the Court by the national court (Document 9-5) this is a company incorporated under V.). According to the court making the refer­ Austrian law. Kraus & Kraus, whose name also appears in the Dimer case, on which the Court of Justice has given ence, two types of invoices accompanied the judgment and which I will discuss further below.

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the contrary, Mondifoods claims to have completion of customs import formalities for paid purchase prices above the minimum free circulation, to compare the import price prices, which does not appear to be disputed with the minimum price. Under Article 3(1) by the Netherlands Ministry. of the regulation, the following factors are to constitute the import price: (a) the fob price in the country of origin; and (b) transporta­ tion and insurance costs up to the place of entry into the customs territory of the Com­ munity. Article 3(3) provides:

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No 426/86, be interpreted as meaning that if and the customs authorities are not satisfied that the price declared reflects the fob price in the country of origin,

— the importer's resale price, in a man­ ner involving deduction from that price of a number of flat-rate items (a) facts may be collected exclusively in for costs (fixed amounts per 100 kg order to determine which import price gross) and profit (8% in the case of actually was agreed and paid, directly or the intermediary trade) not deriving indirectly, between the exporter and the importer; from the records of the importer and/or the intermediary?

or that 2. Is the aforementioned provision invalid under the hypothesis set out in 1(b) above on the ground that the Council regulation does not confer on the Commission the power to grant the competent national authorities such a large degree of discretion (b)the competent authorities are at liberty in determining whether or not the import themselves to reconstruct an import price, price in a given case is below the minimum within the meaning of Article 3(1) of price? Regulation (EEC) No 1626/85, for the transaction in question and in so doing take account of

— transactions other than those between 3. Must Article 3(3) of Commission Regula­ exporter and importer, including in tion No 1626/85 be interpreted as meaning particular transactions at various that "the exporter in the country of origin" stages of the commercial chain is to be understood exclusively as the between the exporter and the exporter whose undertaking is established in importer, the country of origin?'

The second of those questions concerns the validity of those provisions, should the Court interpret them as meaning that the competent authorities can reconstruct the 14. Leaving to one side the two questions import price. In each of the cases, the ques­ concerning Regulation No 994/88 and the tion is asked whether the Commission has specific question of interpretation asked in exceeded its powers by granting a wide dis­ Case C-353/93, the national court is asking cretion to the national authorities to recon­ the Court, first, to interpret Article 4(3) of struct an import price, where the Council's Regulation No 2742/82, Article 2(3) of Regu­ basic regulations made no reference to that lation No 2237/85 and Article 3(3) of Regu­ matter. lation No 1626/85 by clarifying the respec­ tive powers of the Commission and the authorities of the Member States with regard to supervising the observance of Community rules and, secondly, to assess their validity. Despite my concern to distinguish questions of interpretation from those concerning the validity of the provisions, it must be recog­ There is then the third question in Case nized that they are to a large extent interre- C-353/93 (Morello cherries) concerning the

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lated. Since the validity of provisions being imported into the Community. The depends on the interpretation given to them, comparison of that price, a matter of fact, and the interpretation must be made in with the minimum price fixed by regulation accordance with legal principles and there­ enables it to be determined whether or not fore favouring the validity of the provision the countervailing charge is due. being interpreted, the two problems are closely linked.

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a directive to harmonize procedures for the verify documents, examine goods and also 17 take samples. If the declaration does not cor­ release of goods for free circulation and, more recently, the regulation establishing the respond to the actual position, it is the cus­ 18 toms authorities' findings which prevail. Community Customs Code. Since the imports in question in the present cases took That power to establish the actual position, place before the entry into force of that code, is moreover stipulated in Article 10(1) of Council Directive 79/695 was still applicable. Council Directive 79/695: 'the results of the A countervailing charge on the import of an examination of the entry and the documents agricultural product falls within the scope of attached to it, whether or not combined with that directive, since Article 1(2) provides that examination of the goods, shall be used for 'import duty' means inter alia agricultural calculating the import duties and for apply­ levies and other import charges laid down ing any other provisions governing the within the framework of the common agri­ release of goods for free circulation'. In other cultural policy. words, where the statements in the entry are incorrect or incomplete, the customs author­ ities have the power to rectify them or sub­ stitute the results of their own findings. The important thing is that the actual position should be described as correctly as possible.

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the Court is called on to consider provide national court has not posed its questions that the competent national authorities are to from that angle, it nevertheless seems to me take the necessary measures to determine the to be important to give it some guidance in import price if they are not satisfied that the that respect, having regard to the Court's price declared reflects the fob price in the recent case-law. country of origin (Regulations Nos 2742/82 and 1626/85) or the actual import price (Regulation No 2237/85), or where the invoice presented to the customs authorities has not been drawn up by the exporter in the country in which the products originated, or if payment has not been effected within the time-limit provided for in the regulation. In its original version, the earliest regulation 21. The facts in the cases before the Court appears to apply only to the situation where are a good illustration of that problem. In the price indicated in the invoice presented the dried grapes cases (C-351/93 and to the customs authorities did not corre­ C-352/93), the use of fraudulent means is spond to fob sales terms. In that case, it was manifest. The sale from Alpaslan Besikcioglu open to the customs authorities to take the to Fitmay is fictitious; that arrangement is necessary measures to determine the fob used only in order to bring the goods into price. Thereafter, in order better to combat the Community at a price above the mini­ fraud, the Commission laid down by regula­ mum import price. There is no real intention tion a number of cases where the national to transfer (or acquire) ownership of those authorities might themselves reconstruct the raisins, which moreover do not leave the ship 19 in the course of the transactions. That is import price. apparent from several matters: the identical nature of Alpaslan Besikcioglu and Izmir Fig Packers, the sale and resale of the dried grapes on the same day, first to Fitmay and then to Stolp, the absence of actual profit for Fitmay on the resale and the awareness of Fitmay's director that the sale was made only to enable import formalities to be car­ ried out, and furthermore the sale at a loss by Izmir Fig Packers.

appear to dispute that claim. It is solely entry into the customs territory of the Com­ because the cherries were not bought munity) and the fact that the sales invoice directly from a producer established in had not been drawn up by the exporter in Yugoslavia, and because that fact was consid­ the country in which the product originated, ered to be sufficient under the Community the Hauptzollamt Bad Reichenhall had rules to enable the competent national cus­ required Dinter to pay a countervailing toms authorities to determine the price on charge calculated on the price paid by the their own initiative, that those authorities Austrian intermediary to the exporter from 21 reconstructed the import price. the country of origin. Dinter brought an action against that decision, claiming, first, that the price which it had paid on import was above the minimum price and, secondly, that it could not have declared the price paid by the Austrian intermediary to the Yugo­ slav exporter, since it did not know what it was.

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24. In my opinion it therefore follows that customs authorities have 'well-founded the situations subsequently added by the 24 doubts' and, secondly, by providing for Community legislature, namely 'if the different methods of proving that the mini­ invoice presented to the customs authorities 25 mum import price has been observed. In has not been drawn up by the exporter in the this case, since there was no provision of that country in which the products originated' type in the Community rules applicable at and 'if payment has not been effected within the time of the imports, it is for the national the time-limit provided for in [the regula­ court, where relevant, to appraise, in accor­ tion]', cannot be regarded as irrefutable pre­ dance with its national law, the evidence sumptions of fraud enabling the price to be adduced by the customs authorities and by reconstructed without any further verifica­ the importer and to decide whether or not tion, but rather as mere indications intended there was doubt as to the correctness of the to arouse the attention of the customs import price which entitled the authorities to authorities. If, despite the presence of one of reconstruct that price. those indications, there is no doubt as to the actual import price and as to the fact that that price is higher than the minimum price — as appears to be the position in the Morello cherries case (C-353/93) — the cus­ toms authorities must accept that price and may not reconstruct it.

Replies to the questions

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questions concerning the interpretation of transactions of which they are aware and, in the relevant provisions and the factors which particular, changes in the price of the prod­ the competent authorities may take into uct during subsequent business transactions? account in order to determine or reconstruct the import price. Those questions of inter­ pretation relate to the provisions of the regu­ lations which provide that such a recon­ struction may be made where the authorities are not satisfied that the price in the entry reflects the actual import price. It follows from the judgment in Dinter that in such a case the Commission may validly lay down As I have already stated, the customs author­ such a method of reconstruction. In Dinter, ities' task is to establish the facts as precisely the Court did not accept that the price could as possible. The first relevant factor is with­ be reconstructed (and a countervailing out doubt the importer's entry, but if that charge levied) where the goods had been entry is incorrect, other evidence must be purchased from an intermediary not estab­ found which can be taken as a basis. In order lished in the country of origin of those to reconstruct the price agreed between the goods, but where it was certain that both the seller and the importer, one can certainly price paid to the intermediary and that take the various contracts and accounting received on the resale were above the mini­ documents drawn up between exporter and mum price. However, the Court's judgment importer or between other persons with does not call into question the lawfulness of respect to the same or other imports and by the Community provision providing for a tracing back from the exporter to the pro­ reconstruction of the price where doubt does ducer, or forwards from the importer to the exist. A contrario, the Court does not final consumer. exclude the levying of a countervailing charge (on the basis of a reconstructed price) 'where it is not certain that both the price paid to the intermediary and that received on the resale were higher than the minimum price'.

As I have already stated, the rules applicable to the organization of the customs regime are of both Community and of national ori­ At the hearing, Tracotex raised the question 26 gin. Community law and national law whether the freedom left to the authorities of complement each other, since national law the Member States regarding the method of continues to apply in all areas not covered reconstructing the price did not threaten to by Community law. The application of those divert patterns of trade. At first sight, that appears unlikely since it would be necessary laws falls within the jurisdiction of the Mem­ to assume that the competent authorities ber States' customs authorities. In particular, entertained doubts as to the majority of their first task is to check or determine the prices declared by importers and that there facts to which the rules apply. Since the were great differences between the methods Commission has, by the contested regula­ of reconstruction applied in the various tions, only indicated one method of appraisal Member States. In any event, the Commis­ which was already known and used by the sion can always opt for greater harmoniza­ national legislatures, it has not given them tion of reconstruction methods, if it finds any new power. If national legislation had no that there is such a diversion of trade. such method of appraisal, the Commission Regulation could be justified as an indispens­ able rule to ensure the proper application of the Community provisions on the minimum import price. In neither case was it necessary for the Council to act. I do not therefore see any ground on which the Commission regu­ lations are illegal in that they enable the import price to be reconstructed in the event of doubt as to the correctness of the price 28. The national court also inquired as to the declared by the importer. validity of those provisions, if 'the Council Regulation does not confer on the Commis­ sion the power to grant the competent 26 — Sec in particular Anicie 1 of the Community Customs national authorities such a large degree of Code, cited in footnote 18 above.

31. The question concerning Regulation No 994/88 is specific to Case C-352/93, in which the import of dried grapes took place in 30. With regard to the question in Case 1984, although the Court has held the regu­ C-353/93 (import of Morello cherries), it lation applicable at the time, namely Regula­ may be asked whether the national court tion No 2742/82, 'invalid in so far as it estab­ would have felt it necessary for an interpre- lished a countervailing charge at a fixed rate tation of 'the exporter in the country of ori- equal to the difference between the lowest gin', if it had been aware of the Court's judg­ price on the world market and the minimum ment in Dinter. However, that is not a price'. The national court asks whether it is matter which the Court must decide. It will Regulation No 994/88 determining the be for the national court, in the light of amounts to be reimbursed to importers Dinter and of the evidence presented by the which must be regarded as the legally valid customs authorities and by the importer, to base for calculating a countervailing charge assess whether the reply to its question is which is imposed for the first time. still necessary.

Having regard to the wording of Regulation 32. As the Commission and the Netherlands No 1626/85, and talcing into account the sec­ Government point out, in its judgment in ond recital of Regulation No 2237/85, which National Dried Fruit Trade Association, cited states that 'to prevent fraud in regard to the above, the Court did not declare Regulation minimum import price, only invoices drawn No 2742/82 to be void in its entirety, but up in the country of origin of the dried solely the method of calculation and the grapes should be accepted as documentary fixed-rate nature of the charge. The Court

(2) Consideration of the questions has disclosed no factor of such a kind as to affect the validity of Article 2(3)(b) of Commission Regulation (EEC) No

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2237/85 in that it permits reconstruction of the import price where there are doubts as to the correctness of the price declared by the importer.

In Case C-352/93:

(1) Article 2(2) of Commission Regulation (EEC) No 2742/82 of 13 October 1982 on protective measures applicable to imports of dried grapes, in conjunc­ tion with Commission Regulation (EEC) No 994/88 of 15 April 1988, consti­ tute the legal basis for calculating a countervailing charge on the import of dried raisins levied for the first time after the judgment of the Court of Justice of 11 February 1988 in Case 77/86.

(1) Artide 3(3) of Commission Regulation (EEC) No 1626/85 of 14 June 1985 or protective measures applicable to imports of certain Morello cherries must, having regard in particular to Article 18(2) of Council Regulation (EEC) No 426/86, be interpreted as meaning that, if the competent authorities have doubts as to whether the price declared in the entry for free circulation of the goods reflects the actual import price, they may, after having invited the importer to adduce further evidence that the minimum import price has been observed, reconstruct the import price by using all the evidence of which they are aware and which their national law permits to be taken into consideration.

(2) Consideration of the questions has disclosed no factor of such a kind as to affect the validity of Article 3(3) of Commission Regulation No 1626/85 in that it permits the import price to be reconstructed where there are doubts as to the correctness of the price declared by the importer.

(3) Article 3(3) of Commission Regulation No 1626/85 is to be interpreted as meaning that 'the exporter in the country of origin' is to be understood as the exporter whose undertaking is established in the country of origin of the products.

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