C-114/96
ECLI:EU:C:1997:99
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KIEFFER AND THILL
O P I N I O N O F ADVOCATE GENERAL ELMER delivered on 27 February 1997 "
1. The question before the Court in the involving checks, even indirect ones, at inter- present case is whether Council Regulation nal frontiers [first recital]; (EEC) N o 3330/91 of 7 November 1991 on the statistics relating to the trading of goods between Member States (OJ 1991 L 316, p. 1, hereinafter 'the Regulation') is compatible with Article 30 of the Treaty prohibiting quantitative restrictions on imports and all measures having equivalent effect and Article 34 prohibiting quantitative restrictions on exports and all measures having equivalent effect. Whereas an analysis of the situation of the Community and the Member States after 1992 reveals that a number of specific requirements will persist as regards infor- mation on the trading of goods between The Regulation Member States [second recital];
2. The preamble to the Regulation, so far as material, includes the following recitals:
Whereas these requirements are not of a macro-economic nature, unlike those relat- ing, for example, to national accounts o r the balance of payments, and many of them can- not be met by means of highly aggregated 'Whereas abolishing physical barriers data alone; whereas matters such as trade between Member States is necessary to com- policy, sectoral analyses, competition rules, plete the internal market; whereas a satisfac- the management and guidance of agriculture tory level of information on the trading of and fisheries, regional development, energy goods between Member States should thus projections and the organization of transport be ensured by means other than those must on the contrary be based on statistical documentation providing the most up-to- date, accurate and detailed view of the inter- * Original language: Danish. nal market [third recital];
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Whereas it is precisely information on the 3. Under the first subparagraph of Article trading of goods between Member States 3(1) of the Regulation, all goods which move which will contribute to measuring the from one Member State to another are to be progress of the internal market, thereby the subject of statistics relating to the trading speeding up its completion and consolidating of goods between Member States. it on a sound basis; whereas this kind of information could prove to be one of the means of assessing the development of econ- omic and social cohesion [fourth recital];
4. Chapter II of the Regulation deals with the permanent statistical collection system, described in Article 6 as the 'Intrastat sys- tem', which applies, under Article 7(4), to trade between Member States. Whereas until the end of 1992 statistics relat- ing to the trading of goods between Member States will benefit from the formalities, docu- mentation and controls •which the customs authorities, for their own requirements or for those of other departments, prescribe for consignors and consignees of goods in circu- 5. Under Article 8, the obligation to supply lation between Member States, but which the information required by the Intrastat will disappear through the elimination of system is incumbent on any natural or legal physical frontiers and tax barriers [fifth person who is involved in the trading of recital]; goods between Member States; private indi- viduals are, however, exempt from this obli- gation, under Article 5. The information is to be supplied on a monthly basis.
Whereas it will consequently be necessary to collect directly from the consignors and con- signees the data necessary to compile statis- 6. Under Article 9(1), the party responsible tics relating to the trading of goods between for providing the information required by Member States, using methods and tech- the Intrastat system may transfer the task of niques which will ensure thai they are providing the information to a third party exhaustive, reliable and up to date, without residing in a Member State, but that transfer giving rise for the parties concerned, in par- in no way reduces the responsibility of the ticular for small and medium-sized busi- said party. Failure to fulfil that obligation is nesses, to a burden out of proportion to the punishable under Article 14 by the penalties results which users of the said statistics can which Member States lay down in accord- reasonably expect' [sixth recital]. ance with their national provisions.
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According to information provided, in 9. Article 21 reads as follows: Luxembourg persons in default are liable to fines of LFR 10 001 to 100 000.
O n the statistical data medium to be trans- mitted to the competent departments:
7. Chapter III of the Regulation concerns — without prejudice to Article 34, goods statistics on trade between Member States. shall be designated in such a way as to permit easy and precise classification in the finest relevant subdivision of the ver- sion of the combined nomenclature in force at the time;
— the eight-digit code number of the corre- sponding subdivision of the combined nomenclature shall also be given for each 8. Article 20(5) of that chapter prescribes type of goods.' that the party responsible for providing the information referred to in Article 8 is the natural or legal person who (a) residing in the Member State of dispatch, has concluded the contract, with the exception of transport contracts, giving rise to the dispatch of goods or, failing this, dispatches or provides for the dispatch of the goods or, failing this, is in 10. Article 23(1) and (2) provides as follows: possession of the goods which are the sub- ject of the dispatch, and (b) residing in the Member State of arrival, has concluded the contract, with the exception of transport contracts, giving rise to the delivery of goods or, failing this, takes possession or provides for possession to be taken of the goods or, failing this, is in possession of the goods ' 1 . For each type of goods, the statistical which are the subject of the delivery. data medium to be transmitted to the com-
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petent departments must provide the fol- 2. Member States may not prescribe that lowing data: data other than those listed in paragraph 1 be provided on the statistical data medium, except for the following:
(a) in the Member State of arrival, the Mem- ber State of consignment of the goods, within the meaning of Article 24(1); (a) in the Member State of arrival, the coun- try of origin; however, this item may be required only as allowed by Community law;
(b) in the Member State of dispatch, the Member State of destination of the goods, within the meaning of Article 24(2); (b) in the Member State of dispatch, the region of origin; in the Member State of arrival, the region of destination;
(c) the quantity of goods, in net mass and supplementary units;
(c) in the Member State of dispatch, the port or airport of loading; in the Member State of arrival, the port or airport of (d) the value of the goods; unloading;
(e) the nature of the transaction; (d) in the Member State of dispatch and in the Member State of arrival, the pre- sumed port or airport of transhipment situated in another Member State pro- vided the latter prepares transit statistics; (f) the deliver}' terms;
(g) the presumed mode of transport. (e) where appropriate, statistical procedure.'
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11. Article 28 contains certain thresholds for Assimilation and simplification thresholds, suspension or reduction of the obligations; it which are expressed in annual values of distinguishes between exclusion, assimilation intra-Community trade operations, may, and simplification thresholds. under Article 28(6), vary from one Member State to another, by product group and by period.
Under Article 28(8), simplification thresh- Exclusion thresholds apply, under Article olds are set at E C U 100 000 for dispatch and 8(3) in conjunction with the second para- E C U 100 000 for arrival; however, Member graph of Article 5, to parties responsible for States may, under Article 28(9), set assimila- providing information who come under one tion and simplification thresholds at higher of the special schemes provided for by levels. The simplification threshold appli- Articles 24 and 25 of the Sixth VAT Direc- cable to Luxembourg is set at LFR tive 77/388/EEC, 1 to institutional parties 10 000 000. Below the simplification thresh- not liable to account for VAT and to parties olds the parties responsible for providing exempt from VAT who, pursuant to Article information must state the type of goods, the 28(7) of Directive 77/388, are not required to eight-digit code number, the Member State submit a tax declaration. of consignment or destination, and the value of the goods.
12. Article 34 of the Regulation reads as fol- Assimilation thresholds exempt, under lows: Article 28(4), parties responsible for provid- ing information from the obligation to make declarations under the Regulation, that obli- gation being satisfied by the periodic tax declaration which they make as parties liable to account for VAT. '1. In respect both of goods subject to the Intrastat system and of other goods, the Commission may, for the purpose of facili- 1 — Sixth Council Directive of 17 May 1977 on the harmoniza- tating the task of the parties responsible for tion of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis providing information, establish in accord- of assessment (OJ 1977 L 145, p. 1), as amended by Council ance with Article 30 simplified data collec- Directive 95/7/EC of 10 April 1995 amending Directive 77/388/EEC and introducing new simplification measures tion procedures and in particular create the with regard to value added tax — scope of certain exemp- tions and practical arrangements for implementing them (OJ conditions for increased use of automatic 1995 L 102, p. 18). Articles 24 and 25 relate respectively to a data processing and electronic data transmis- special scheme for small undertakings and a common flat- rate scheme for farmers. sion.
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2. In order to take account of their indi- on the company's imports and exports vidual administrative arrangements, Member required under the Intrastat system. States may establish simplified procedures other than those referred to in paragraph 1, provided that those responsible for provid- ing information may choose the procedures they will use.
15. They argue, however, that because of the burden it lays on undertakings as a result of the obligation to provide highly detailed information, the Regulation has the character of a measure having equivalent effect to a Member States exercising this option shall quantitative restriction on imports and inform the Commission accordingly.' exports, so that it infringes Articles 30 and 34 of the Treaty.
Facts of the case The questions referred for a preliminary ruling
13. René Kieffer and Romain Thill are the managers of Établissements Kieffer & Thill, a limited company whose object, according 16. By judgment of 2 April 1996 the Tribu- to its statutes, is to deal in motor cars. The nal de Police (Local Criminal Court), company inter alia buys and sells accident- Luxembourg, referred the following ques- damaged and secondhand cars, spare parts, tions to the Court: and car accessories of all sorts. It is common ground that the value of the undertaking's exports to other Member States each year exceeds the simplification threshold of LFR 10 000 000 under Article 28(9) of the Regu- lation. '1. In so far as it requires Member States to obtain from every undertaking exceed- ing the stipulated exclusion, assimilation and simplification thresholds a detailed declaration of all its intra-Community imports and exports, has Council Regu- 14. Mr Kieffer and Mr Thill are charged lation (EEC) N o 3330/91 of 7 Novem- with infringing, in 1993 and 1994, the provi- ber 1991 introduced a measure having sions of Articles 3, 8 and 14 of the Regu- an effect equivalent to a quantitative lation, by failing to transmit the information restriction on trade in goods between
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Member States prohibited by Articles obligation to provide information is 30 and 34 of the EEC Treaty? increased by the fact that the obligation applies to all transactions, whatever their value. Mr Kieffer and Mr Thill further sub- mit that the Regulation does not comply with the principle of proportionality, since it imposes constraints which go beyond what is necessary. That is the case with respect 2. Does the obligation to provide the data both to the level of detail required and to the required under the Intrastat collection obligation to provide information in both system in both the importing and the the Member State of dispatch and the Mem- exporting country, breach of which is ber State of arrival. subject to criminal sanctions under Luxembourg law in the event of non- submission of the information requested to the Service Central de la Statistique et des Études Économiques, constitute for traders a constraint that is unjustified and disproportionate in relation to the objective of general interest pursued and 18. The Luxembourg Government, sup- is it therefore contrary to the third para- ported by the Council and Commission, graph of Article 3 b of the EEC Treaty submits that the Regulation does not consti- as inserted by Article G(5) of the Treaty tute a measure having equivalent effect on European Union signed at Maas- within Articles 30 and 34 of the Treaty. The tricht on 7 February 1992?' Regulation's effect on the free movement of goods is too uncertain and hypothetical for Articles 30 and 34 to apply. Moreover, the Regulation pursues an objective consistent with the Community interest, since the subject-matter of the information is impor- Procedure before the Court tant for the internal market and for several Community policies.
17. Mr Kieffer and Mr Thill submit that Articles 30 and 34 of the Treaty are also binding on the Community legislature and that the Regulation constitutes an obstacle to The Intrastat system in several respects the free movement of goods. Especially for means a simplification compared to the pre- small and medium-sized undertakings, hav- vious system which was based on documen- ing to declare the information required, tation required by the customs authorities which is particularly detailed, is a source of when a frontier was crossed. It may be sim- both costs and constraints. Thus an under- plified further yet, thanks to the use of the taking has to find out, for each transaction, I D E P / C N 8 data-processing program, sup- the correct eight-digit code of the combined plied free of charge, which contains inter alia nomenclature. The burden resulting from the all the eight-digit codes of the combined
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nomenclature with the relevant search func- in the interpretation of Articles 30 and 34 of tion. Moreover, for most undertakings, the the Treaty. I consider that there is no need in information is already in their possession. the present case to undertake a separate interpretation of the third paragraph of Article 3 b, which moreover only entered into force on 1 November 1993, in other words during the period material for the present case.
The Luxembourg Government, the Council and the Commission further submit that the Intrastat system is not contrary to the prin- ciple of proportionality. It is settled case-law that that principle extends to the application 20. The basic question here is thus in fact of the Treaty provisions on the free move- •whether the Regulation is contrary to ment of goods, so that there is no need to Articles 30 and 34 of the Treaty, and in this have recourse to the third paragraph of respect it should be examined whether the Article 3 b of the Treaty. The volume of Regulation constitutes an obstacle to intra- information required by the Regulation is Community trade, whether any obstacle necessary for drawing up useful statistics. there may be is justified by considerations of The various thresholds have the effect of the general interest, and in that connection exempting a series of operators from the whether the Regulation imposes constraints obligation to provide information. Since dif- going beyond what is necessary for safe- ferent thresholds apply in different Member guarding that general interest. States, however, it is necessary to prescribe an obligation to provide information for both the consignor and the consignee.
21. The Court has consistently held that the prohibitions in Articles 30 and 34 do not apply only to national measures. Those pro- Opinion visions apply equally to measures of the Community institutions. 2
19. The third paragraph of Article 3 b of the 22. It is settled case-law that Article 30 Treaty, referred to by the national court, extends to measures capable of hindering, which was inserted into the Treaty by the directly or indirectly, actually or potentially, Treaty on European Union and states that the Community is not to go beyond what is necessary to achieve the objectives of the Treaty, essentially expresses the Community 2 — Sec the judgments in Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others v Paranova principle of proportionality, which, accord- [1996] ECR 1-3457, paragraph 36, and Case C-51/93 Meyhui v Schott Zwiesel Ciaswerke [1994] ECR 1-3879, paragraph ing to settled case-law, is an essential element 11.
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intra-Community trade, 3 whereas Article 34 the fact that the goods cross the frontier, relates to measures which have the specific since it is the cross-frontier transaction effect of restricting export operations in rela- which in itself triggers the obligation to pro- tion to trade within the Member State con- vide information. The restrictive effects on cerned. 4 It also follows from the Court's the free movement of goods which are liable case-law that there is no minimum threshold to be caused by the system are not, in my for the application of Articles 30 and 34, so opinion, so hypothetical that the system that no distinction is drawn according to the remains outside the scope of the provisions effect of a measure on trade within the Com- on the free movement of goods. munity. 5 Measures which are considered to affect trade between Member States only in an uncertain way do not, however, according to the case-law, come under the Treaty pro- vision concerning the free movement of goods. 6 24. A Community measure whose aim is to promote the implementation of the internal market may not, however, be considered as an obstacle to trade in breach of Articles 30 and 34 of the Treaty unless it goes beyond what is necessary for achieving the objec- tive. 7
23. Under the Intrastat system undertakings The Court has moreover expressly acknowl- must provide on a monthly basis detailed edged that obstacles to the free movement of information on their import or export trans- goods may be necessary in order to obtain actions. There is therefore a burden which reasonably complete and accurate infor- specifically falls on cross-frontier transac- mation on movements of goods within the tions. Even if the information is to a large Community. 8 extent information already in the undertak- ing's possession, drawing up the declarations required will both take time and generate costs, in particular for small and medium- sized undertakings. Moreover, there is a direct relationship between the burden and 25. The Regulation was adopted on the basis of Article 100a of the Treaty, which relates to harmonization measures concerning the functioning of the internal market. A direct 3 — Sec, for example. Case C-323/93 Centre d'Insémination Je la Crespelle v Coopérative de la Mayenne [1994] ECR 1-5077 information system had become necessary as and Case 8/74 Dassonville [1974] ECR 837. 4 — Sec, for example, Case 15/79 Groenveld v Produktschap voor Vee en Vlees [1979] ECR 3409, paragraph 7. I stx no need to express an opinion here on the effect on that case-law of the judgment in Case C-384/93 Alpine Investments [1995] ECR 7 — Sec Case 46/76 Banhais v Netherlands [1977] ECR 5, para- 1-1141. graphs 20, 30 and 31, Meyhui, cited in note 2 above, para- 5 — See Case C-126/91 Yves Rocher [1993] ECR 1-2361, para- graph 20, and Case C-426/93 Germany v Council [1995] graph 21. ECR 1-3723. 6 — Sec on this point Case C-379/92 Peralta [1994] ECR 1-3453, 8 — Sec Case 159/78 Commission v Italy [1979] ECR 3247, para- paragraph 24. graph 7.
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a result of the abolition of checks at internal principle of proportionality. In assessing frontiers. As appears from the third recital in whether that is so, it must be borne in mind the preamble to the Regulation, reliable and that the Community legislature has a margin sufficiently detailed statistical information is of discretion when adopting harmonization important for a number of Community poli- measures. 9 cies, including trade policy, competition rules, regional development and transport. For example, statistics on the development of flows of goods and the prices of transactions on a particular product market may help uncover agreements between undertakings restricting competition, relating to dividing up the market or to selling prices, contrary 27. Under Article 23(1) of the Regulation, to Article 85 of the Treaty. Moreover, draw- information must be provided on the Mem- ing up detailed statistics is of vital impor- ber State of dispatch and the Member State tance for monitoring the progress and imple- of arrival, the quantity and value of the mentation of the internal market: see the goods, the nature of the transaction, the fifth recital in the preamble. The statistics delivery terms and the presumed mode of may, for example, reveal obstacles to trade transport. In addition, under Article 21, the and thereby contribute to the adoption of eight-digit code number of the combined measures by the Commission in the form of nomenclature must be given for each type of specific legal proceedings or proposals for goods. legal acts of a general character. If one or more Member States were, for instance, to introduce new technical requirements in a particular field, the Intrastat system would be able to give a picture of such a measure's effects on trade and thereby assist the Com- mission to decide whether and how to inter- vene. 28. All those categories of information are relevant for ensuring the objectives pursued by the Regulation. The mode of transport, for example, is relevant for statistics on the quantities of goods carried by lorry and train respectively, which is of interest for trans- port policy and for possible decisions on developing trans-European networks. Infor- mation on delivery terms may be relevant for competition policy, since it may give an indi- cation of the market conduct of undertak- ings. The eight-digit code number appears 26. In view of the above considerations, I necessary with respect to the processing of consider that the Regulation pursues a gen- the information collected, since it simplifies eral objective in the Community interest and the breakdown and classification of the very is therefore not contrary to Articles 30 and 34 of the Treaty. The decisive question is thus whether the Regulation interferes more than necessary and so conflicts with the 9 — Sec Meyhui, cited in note 2 above, paragraph 21.
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great number of declarations. It would chases, for example, of raw materials, com- scarcely be possible in practice for the rel- ponents and equipment. These are likely to evant offices to carry out that classification vary considerably as regards frequency and themselves. Moreover, it appears that the to vary in nature and volume. The twofold burden involved for the undertaking will obligation to provide information is neces- tend to diminish once it has, after a transi- sary, however, according to the Commission, tional period, classified the import and because of the thresholds contained in the export transactions which normally form Regulation which are not the same in all part of its activities. The burden may be fur- Member States. If the purchaser, as opposed ther lightened by the use of modern technol- to the seller, is subject to the obligation to ogy. 10 make a declaration, the system of the Regu- lation ensures that the transaction in ques- tion will be included in the statistics. The twofold obligation to provide information is therefore of importance for the extent of the statistical material. The Community legisla- ture considered that that justified extending 29. Consequently, in my opinion, only rwo to the importer the obligation to provide elements of the Intrastat system can be called information. The Community legislature and into question, namely the requirement that the authorities who process and use the sta- the same transaction has to be declared by tistics in question are, in my opinion, best both the exporter and the importer, and the placed to make the choice which is the basis fact that the obligation to provide infor- of the determination of which information is mation extends to all movements of goods. It necessary. The Court cannot reject that may be noted here that the simplification choice unless it is manifest that the require- thresholds do not exempt undertakings alto- ments relating to information go beyond gether from the obligation to provide infor- what is necessary. In my opinion, there is mation, but merely reduce the number of nothing to suggest that the legislature items of information to be transmitted. exceeded its margin of discretion.
30. As to the first element, I observe that it appears that it is the obligation to declare 31. As to the requirement that all transac- import transactions in particular which may tions are to be declared, I observe that it be burdensome. The production of an under- appears from the sixth recital in the preamble taking will normally be characterized by a to the Regulation that the Community legis- certain continuity in terms of products and lature was careful not to impose a burden on time. That will not necessarily be the case to undertakings which was out of proportion to the same extent for an undertaking's pur- the results which the users of the statistics could reasonably expect.· That also follows from the various thresholds included in the Regulation. The effect of the exclusion and 10 — It follows from paragraph 49 of the Germany v Council judgment, cited in note 7 above, that in assessing the extent assimilation thresholds is thus that a number of tne burden relating to an obligation, the possibility of of undertakings are not required to make making use of modern technologies must be taken into account. declarations, other than those arising from
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the obligation to account for VAT periodi- therefore be allowed a certain time to evalu- cally. It appears from the written observa- ate the functioning of the system in practice tions of the Luxembourg Government that and on that basis to decide whether a relax- around two-thirds of undertakings are ation is appropriate. It may be noted in this thereby exempted from the obligation to respect that the Commission, by Regulation provide information. The simplification (EC) N o 2820/94, " introduced a threshold thresholds mean that undertakings which for transactions, under which transactions engage in cross-frontier transactions only to not exceeding E C U 100 may be entered a limited extent are obliged to declare only a under global heading 99 50 00 00 of the com- small amount of information. Moreover, bined nomenclature. Moreover, only the even in that case, the burden must be Member State of dispatch, the Member State assessed in the light of the possibility of of consignment, and the value of the goods using modern technology, in particular the need be stated. Consequently, I consider I D E P / C N 8 computer program, which is that, from the point of view also of the supplied free. Finally, it should be taken into extent of the obligation to provide infor- consideration that the system is a new one, mation, the Community legislature may not setting up a direct declaration scheme for the be regarded as having exceeded the limits of first time. The Community legislature should its discretion.
Conclusion
32. F o r the above reasons, I propose that the C o u r t should give the following a n s w e r t o t h e q u e s t i o n s p u t b y t h e Tribunal d e Police, L u x e m b o u r g :
E x a m i n a t i o n of C o u n c i l R e g u l a t i o n ( E E C ) N o 3330/91 of 7 N o v e m b e r 1991 o n t h e statistics relating t o t h e t r a d i n g of g o o d s b e t w e e n M e m b e r States, in the light of t h e j u d g m e n t m a k i n g t h e reference a n d t h e o t h e r elements in t h e case, has n o t disclosed any factors of such a k i n d as t o cast d o u b t o n t h a t regulation's validity.
11 — Commission Regulation (EC) N o 2820/94 of 21 November 1994 fixing a threshold value for individual transactions in the context of statistics relating to trade between Member States (OJ 1994 L 299, p. 1).
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