C-223/95

MOKSEL v HAUPTZOLLAMT HAMBURG-JONAS

OPINION OF ADVOCATE GENERAL LÉGER delivered on 20 February 1997 *

1. This reference for a preliminary ruling, I — Facts of the case case,, national proceedings submitted by the Finanzgericht (Finance and the question referred for a preliminary Court), Hamburg, must be seen in the politi­ ruling cal context arising from the events of 1989, which led to the reunification of Germany.

4. On 9 May 1990, A. Moksel AG ('Mok- seľ), established in Bavaria, purchased some 2. Those tumultuous events resulted in 20 000 cattle from an East German company, changes in the legal order, with at times with a view to having them slaughtered in uncertain implications, particularly for com­ the FRG and then re-exporting them to the Soviet Union. mercial transactions of the kind under way in this case.

10. The point on which the German court 8. On 10 January 1991, Moksel completed seeks clarification, in particular, is apparent the formalities for exporting the slaughter from the order for reference. In the national products to the former Soviet Union and, on court's view, initially 'no export refunds 15 January 1991, it submitted to the Haupt- could be granted in respect of the cattle zollamt (Principal Customs Office), originating in the GDR or for the products 2 Hamburg-Jonas an application for export obtained therefrom ...'. The national court's refunds. question is therefore concerned with a pos­ sible change in the status of the goods as a result of the change in the law following reunification between the GDR and the- FRG. 3It is that aspect of the case, concern­ ing the temporal application of the law, that 9. By decision of 10 April 1991, the Haupt- will have to be examined. zollamt Hamburg-Jonas refused to grant the refunds applied for. Moksel accordingly brought an action before the Finanzgericht Hamburg, which referred to the Court the following question: II — Legislation

'Is Article 8(1) of Regulation (EEC) No 3665/87 in the version of 27 November 1987, 11. Export refunds are linked to the prices as amended on 8 December 1988, in con­ of agricultural products in the Member junction with Article 9(2) of the EC Treaty States, which are in general higher than to be interpreted as meaning that those pro­ world market prices. They are therefore visions also cover products which were adjusted, for reasons of economic competi­ imported into the Federal Republic of Ger­ tiveness, to the prices charged by third coun­ many from the former German Democratic tries, which thus makes it necessary to

— that the products are of Community ori­ 13. Article 18(1) of Council Regulation gin, unless an exception is made pursuant (EEC) No 805/68 of 27 June 1968 on the to Article 7.' common organization of the market in beef 4 and veal, provides as follows:

15. Article 7 of Regulation No 885/68 pro­ vides:

'To the extent necessary to enable the prod­ ucts listed in Article 1 to be exported on the basis of quotations or prices for those prod­ 'Unless an exception is made in accordance ucts on the world market, the difference with [the] procedure laid down in Article 27 between those quotations or prices and 6 of Regulation (EEC) No 805/68, no export prices within the Community may be cov­ refund shall be granted on products listed in ered by an export refund.' Article 1 of that regulation 7 which are imported from third countries and re-exported to third countries.'

'A refund shall be granted only in respect of products which come within the terms of Article 9(2) of the Treaty, even if the packag­ ing does not come within those terms.'

19. However, that contradiction can be resolved in favour of Commission Regu­ lation No 3665/87, inasmuch as Article 7 of Regulation No 885/68, by referring to the 17. Finally, according to Article 9(2) of the procedure under Article 27 of Regulation 10 Treaty: No 805/68, expressly recognizes that the Commission is entitled to derogate from the principle that prohibits refunds in respect of products imported from third countries.

'The provisions of Chapter 1, Section 1, and of Chapter 2 of this title shall apply to prod- ucts originating in the Member States and to products coming from third countries which 9 are in free circulation in Member States'. 20. The Commission has been able to alter the conditions for the grant of export refunds by resorting to the Article 27 pro­ cedure, since that procedure is also referred to in Article 18(6) of Regulation No 805/68 as the framework for laying down detailed 18. A comparison of those two provisions rules for the application of the whole of with Articles 6(1) and 7 of Regulation No Article 18, which was in fact the basis on 885/68 reveals a degree of uncertainty as which Regulation No 3665/87 11 was regards the conditions for the grant of export adopted. refunds. Articles 6 and 7 of Regulation No

procedure,, see footnote 6 to this 10 — For a description of this procedure 351,, p. 1. 8 — OJ 1987 L 351 Opinion.. Opinion added.. 9 — Emphasis added 11 — Article 1.

23. In my view, therefore, Regulation No 3665/87 laying down common detailed rules for the application of the system of export refunds on agricultural products lawfully A — Geographical origin of the animals amended the conditions for the grant of refunds by setting forth the derogation in the first subparagraph of Article 8(1), which

26. According to Article 4(1) of Council preamble,, emphasis added 12 — Second recital in the preamble added.. Regulation (EEC) No 802/68 of 27 June

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1968 on the common definition of the con­ the FRG, on the determination of their ori­ cept of the origin of goods: gin is defined by Regulations No 802/68 and 14 No 3620/90.

'Goods wholly obtained or produced in one 30. Article 5 of Regulation No 802/68 pro­ country shall be considered as originating in vides as follows: that country.'

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32. In the light of those considerations, I am applies to it as a territory which is not part of inclined, like the national court, to consider the Community'. the animals as originating in the GDR.

35. Moksel considers, however, that the ref­ 33. That accordingly raises the question of erence to Fleischkontor is not relevant, on the the effect which the GDR's integration into ground that that decision relates to a factual the Community may have had on the origin situation in which the goods from the GDR of the animals. originated in that country at the time of export and of submission of the application for export refunds, whereas in this case, at the corresponding stages, the GDR had dis­ appeared.

B — The effects of the Unification Treaty on the origin of the animals

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so far as concerns the provisions concerning which have come into force in connec­ the customs territory and the origin of tion with those Treaties shall apply in goods. the territory [of the Länder of the GDR ].

37. The Unification Treaty postdates the period in which the animals were trans­ (2) Upon the accession taking effect, the ported into the territory of the FRG, with legislative acts enacted on the basis of the result, it seems to me, that only a retro­ the Treaties of the European Communi­ active statutory provision would be capable ties shall apply in the territory [of the of conferring a Community origin on goods Länder of the GDR ] unless the compe­ coming from East German territory prior to tent institutions of the European Com­ unification. munities enact exemptions. These exemptions are intended to take account of administrative requirements and help 20 avoid economic difficulties.'

38. Accordingly, in order to determine their temporal scope, it is necessary to examine the statutory provisions whereby the terri­ tory of the GDR became an integral part of 40. Drafted in those terms, the Treaty ren­ the Community. ders Community law in its entirety appli­ cable to the Länder of the GDR as from that State's accession to the FRG. In the absence of any provision which gives it retroactive effect on legal situations predating its entry into force, it must, in my view, be regarded 39. The integration of the GDR into the as making provision only for the future and customs territory of the Community was therefore as having no retroactive effect achieved by the Treaty of 31 August 1990, capable of affecting the origin of the animals cited above; Article 10(1) and (2) of that or their legal status. Treaty provide as follows:

effect, retroactivity must be clearly stated: unchanged in the absence of any amending 'the principle of legal certainty requires that provision. a regulation should not be applied retroac­ tively, regardless of whether such an applica­ tion might produce favourable or unfavour­ able effects for the person concerned, unless a sufficiently clear indication can be found, either in the terms of the regulation or in its 44. Admittedly, in its communication of 24 stated objectives, which allows the conclu­ October 1990 addressed to the delegations of sion to be drawn that the regulation was not the Management Committee on Trade 21 23 merely providing for the future'. Mechanisms, the Commission took a dif­ ferent view. However, that document does not strike me as being capable of altering the status of the goods. In the first place, its pedagogical nature, expressed by the fact that it claims 'to summarize the legal situation', deprives it of any legislative force. Secondly, even on the assumption that it is designed to 42. Similarly, I endorse the view expressed produce legal effects, the Commission's by Advocate General Fennelly in AlUin, to action is, in the absence of any legal basis for 24 the effect that: 'while the case-law on the its powers, lacking in any justification. absence of any retroactive effect of Commu­ Accordingly, the Commission's communi­ nity law in general refers to measures cation cannot derogate from the aforesaid adopted by the institutions, the principle of provisions of the EC Treaty and of the rel­ legal certainty would ... equally militate evant Community regulations, applied to the against according such effect to the reinter- territory of the former GDR by virtue of the pretation of the [ECSC] Treaty to take Treaty of 31 August 1990. 22 account of the unification of Germany'.

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them slaughtered in the FRG, was adopted 48. The conditions for that status are laid no later than 15 May 1990. Accordingly, down in Article 10(1) of the EEC Treaty, the prospect of qualifying for those refunds which provides as follows: by virtue of the rights described in that com­ munication cannot have contributed to the organization of the commercial transaction.

'Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are 46. Thus the origin of the animals is not in payable have been levied in that Member doubt and in my view there is no express State, and if they have not benefited from a rule providing for, nor any general principle total or partial drawback of such duties or authorizing, its retroactive amendment. Not charges'. having a Community origin, therefore, the goods must, in order to confer entitlement to the export refunds sought by Moksel, satisfy the conditions for their release into free cir­ culation.

50. We have seen that, at the time of the 'Since trade between the German territories entry into force of the Unification Treaty on subject to the Basic Law for the Federal 3 October 1990, the origin of the goods was Republic of Germany and the German terri­ unchanged, nor could it have been changed tories in which the Basic Law does not apply otherwise than by means of an express statu­ is a part of German internal trade, the appli­ tory provision, which is lacking to this cation of this Treaty in Germany requires no 27 date. change in the treatment currently accorded this trade'.

51. Assessment of the status of goods released into free circulation depends on the consequences to be drawn from the specific 53. In view of the derogation thus made in aspects of the transaction in question, which favour of trade between the two German was carried out partly in the context of Ger- States before their reunification, it seems to man internal trade. Furthermore, at the cus- me to be essential to determine whether the toms level, a particular feature of the animals GDR, whose territory was not part of the is that they entered the FRG by virtue of a 28 Community, could nevertheless be re­ transit licence and were then placed under garded as a third country, having regard to customs supervision with a view to being the obligations set out in Article 10(1) of the slaughtered and dispatched to a third coun­ Treaty as regards the export of its products. try.

A — Export of the animals in the context of German internal trade 54. In Fleischkontor, the Court stated its position on that point, holding that, although the GDR is not a Member State of the Community, nor is it a third country 'as 29 regards German internal trade'. However, the transaction in this case cannot be 52. The cattle were exported from the GDR regarded as being confined to the field of to the FRG within the legal framework of inter-German relations alone since entry into

57. Furthermore, as the Court clearly stated in Fleischkontor, 'the main principle here is that only products originating in the Com­ munity are entitled to a refund, and what is granted to products imported from third countries and re-exported to third countries is only a "repayment" of a levy already 32 55. According to the Protocol, goods origi­ exacted.' nating in the GDR which enter the FRG directly are not subject either to the customs duties in the Common Customs Tariff, or to agricultural levies, or to the import quotas fixed under the Community's common com­ mercial policy. The national court has con­ firmed, moreover, that 'customs clearance for 58. Furthermore, 'the scope of the Protocol free circulation did not take place and cus­ is ... misconceived if it is sought to infer from toms duties and charges having equivalent 31 it that the Community must extend the guar­ effect were not levied'. antees of prices under the common agricul­ tural policy to products originating in the 33 German Democratic Republic'. 30 — Sec Sec,, on a comparable problem problem,, the Opinion of Advocate General Jacobs in Case 12 12// 88 Schäfer Shop [1989 1989]] ECR 2937,, point 19 2937 19,, according to whom 'the precise status of goods imported into the Federal Republic from the GDR under the special system of trade appears indeterminate indeterminate.. While it is the clear intention of Paragraph 1 of the Proto- assimilated,, for the purposes col that such goods are to be assimilated Republic,, to goods originating of circulation in the Federal Republic Republic,, they cannot be regarded as being in in the Federal Republic Community,, since the requirements free circulation in the Community of Article 10 10((1) of the Treaty ... have not been fulfilled' fulfilled'.. Furthermore,, 'where such goods are re-exported Furthermore re-exported,, they have 59. The GDR was not a Member State of the a special status which lies somewhere between that of goods Community, involved in that capacity in which are in free circulation within the meaning of Article 10((1), and that of goods which arc not in free circulation 10 financing the common agricultural policy. It and which are therefore in principle not capable of benefit- ing from the rules relating to the free movement of goods' goods'.. could not therefore qualify, even indirectly, The issue in that case was the re-exportation from the FRG through inter-German trade, for the pay­ to other Member States States,, and not to a third countrycountry,, of goods originating in the GDR GDR,, although in my view the ments granted to traders in the customs ter­ reasoning of Advocate General Jacobs can be applied here here.. place,, he points out that the aim of the Protocol In the first place ritory of the Community. is to permit the free movement of goods from the GDR in the territory of the FRG FRG.. Secondly Secondly,, he points out that this freedom docs not extend beyond the territory of the two States,, so that States that,, once they have left the FRG FRG,, they once again become goods of non-Community origin origin.. judgment.. 32 — Paragraph 10 of the judgment reference.. 31 — Page 14 of the English translation of the order for reference judgment.. 33 — Paragraph 11 of the judgment

65. As the Commission has shown, the ani­ mals bought by Moksel therefore left the 62. It is apparent from the question raised economic circuit of the former GDR once by the national court that the products were imported into the FRG on the basis of a derogation granted for the processing of goods in transit and were then exported to a reference.. 34 — Page 2 of the English translation of the order for reference third country. It is pointed out in the order procedure,, see in particular J. R. Nassiet 35 — On the transit procedure Nassiet,, La 1988,, p. 208 et seq réglementation douanière, 1988 ., and C . J. seq., for reference that the transit licence was Tremeau,, Le droit douanier, 1988 Berr and H . Tremeau 1988,, p. 378 et seq seq.. granted on condition that the animals were procedure,, see in particular 36 — On the customs warehousing procedure above,, p. 158 et seq La réglementation douanière, cited above seq.,., placed under customs supervision in the above,, p. 288 et seq and Le droit douanier, cited above seq..

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and for all, and the resultant slaughter prod­ ing from political upheavals in the State in ucts were not at any time brought into the which they originated, or in that which they economic circuit of the FRG or the Commu­ crossed. 37 nity. They were only placed in store in West German territory for strictly economic reasons, namely processing before export.

67. It follows from the foregoing that the provisions laying down the conditions for the grant of export refunds, referred to in the 66. Thus, there was no change whatsoever in question submitted for a preliminary ruling, the origin of the goods, nor were they cannot be applied to the animals imported released into free circulation, since they were from the GDR and then re-exported by not affected by the changes in the law result­ Moksel.