C-237/96
ECLI:EU:C:1997:332
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AMELYNCK AND OTHERS
OPINION OF ADVOCATE GENERAL LENZ delivered o n 26 J u n e 1997*
A — Introduction ' 1 . Exportation as contraband of garments (of French origin; > destination: Belgium, in particular Brussels); estimated value: FF 5 000 000 over a period not subject to prescription;
1. The present reference for a preliminary ruling by the Fourth Criminal Chamber of the Cour d'Appel (Appeal Court), Mons, concerns Community transit. 2. Importation as contraband of other gar- ments from Belgium (of Spanish origin)2 intended for various customers in Paris; esti- mated value: FF 2 000 000.'
2. Those charged in the national proceedings stand accused of having fraudulently 4. The Belgian authorities thereupon imported, over the period from October brought criminal proceedings, pursuant to 1984 to March 1985, 'prêt-à-porter' garments Belgian customs provisions, against of unknown origin from France into Bel- Mr Amelynek and 29 other (natural and gium. legal) persons. As a ground for those pro- ceedings, the Belgian authorities argued that, failing production of the T2 or T2 L docu- ment, it was not possible for the accused to prove that the goods exported from France to Belgium had originated in the Commu- 3. The criminal prosecution appears to have nity. They also sought payment by the originated in joint investigations conducted accused of the corresponding customs duties. by the competent French and Belgian authorities. In connection with those investi- gations, the D N E D (Direction Nationale des Enquêtes Douanières — National Director- ate for Customs Investigations) in Paris sent 5. In its judgment of 9 February 1993, the a telex message on 13 March 1985 to the Bel- Tribunal de Tournai held that the criminal gian services. That message stated that the proceedings were time-barred. It also held house searches carried out in France had that the facts alleged against the accused had made it possible to confirm that the follow- to be regarded as established and ordered 28 ing offences had been committed:
1 — Emphasis added. * Original language: German. 2 — Emphasis added.
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of those accused to pay the duties owingplus of the EEC Treaty, namely goods which default interest. 3 Most of those concerned come from non-member countries and are appealed against that judgment to the Cour not in free circulation in the Community; the d'Appel, Mons. In the proceedings before other procedure, referred to as the internal that court, some at least of the appellants Community transit procedure, applies essen- argued that it was clear from the abovemen- tially, as is clear from Article 1(3) of Regu- tioned telex of 13 March 1985 that the goods lation N o 222/77, to goods which satisfy the in question had originated in the Commu- conditions laid down in Articles 9 and 10 of nity. the E E C Treaty, namely goods originating in the Member States or which are in free cir- culation within the Community, known as "Community goods".
6. In order to understand the questions to which these proceedings give rise, it is neces- sary to consider the provisions governing the Community transit procedure in force at the material time. Those provisions were con- tained in Council Regulation (EEC) 10. Under Article 12(1) of Regulation N o 222/77 of 13 December 1976 on Com- N o 222/77, any goods carried under the pro- munity transit. 4 cedure for external Community transit must be covered by a declaration on a form T l .
7. The Court has already examined those provisions in its judgment in Trend-Moden Textilhandel. 5 In that case, the Court sum- marized those provisions as follows: 11. Under Article 39(1) of Regulation N o 222/77, any goods that are carried under the procedure for internal Community tran- sit, in other words essentially Community goods, must be covered by a declaration on a form T2. Thus, as a general rule, form T2 is '9. Regulation N o 222/77 lays down two the means of proof of the Community status Community transit procedures. One pro- of goods subject to the internal Community cedure, referred to as the external Commu- transit procedure. nity transit procedure, applies essentially, as is clear from Article 1(2) of Regulation N o 222/77, to goods which do not satisfy the conditions laid down in Articles 9 and 10
3 — O n e of the accused was acquitted in the judgment, while 12. It must be pointed out that there are spe- another had died in the interim period. 4 — O J 1977 L 38, p. 1. This regulation was repealed by Council cific provisions of Regulation N o 222/77 Regulation (EEC) N o 2726/90 of 17 September 1990 on which provide for cases in which Commu- Community transit. 5 — Case C-117/88 Trend-Moden Textilhandel v HauptzoUamt nity goods are not carried under the pro- Emmerich [1990] ECR 1-631. cedure for internal Community transit.
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13. For those Community goods which are provides that the document T2 L may be not carried under the procedure for internal issued retroactively.' 6 Community transit, when that procedure is not compulsory, Commission Regulation (EEC) N o 223/77 of 22 December 1976 on provisions for the implementation of the Community transit procedure and for cer- tain simplifications of that procedure (Offi- 8. Under Article 39(2) of Regulation cial Journal 1977, L 38, p. 20) prescribes as N o 222/77, the provisions on external Com- the means of proof document T2 L, the con- munity transit contained in Title II (Articles tents of which are the same as those of docu- 12 to 38) of the regulation apply mutatis ment T2 for the internal Community pro- mutandis — with the exception of a few spe- cedure (see the ninth recital in the preamble cial rules (which are not relevant here) — to and Article 1(8) of Regulation N o 223/77). internal Community transit.
14. It follows from the above that Regula- tions N o 222/77 and N o 223/77 lay down Those provisions include Article 37 of the the rule that the Community status of goods regulation, which is worded as follows: may be proved only by means of document T2 or document T2 L, subject to specified exceptions.
'1. The Tl documents issued in accordance with the rules, and the identification mea- sures taken by the customs authorities of one 15. That interpretation is borne out by Member State, shall have the same legal Article 9 of Regulation N o 222/77, which effects in other Member States as the Tl provides that where, in the cases provided documents issued in accordance with the for in the regulation, "the provisions of the rules and the identification measures taken Treaty establishing the European Economic by the customs authorities of each of those Community which relate to free movement Member States. of goods are only applied on presentation of an internal Community transit document issued to establish the Community status of the goods, the party concerned may, for any valid reason, obtain that document subse- quently from the competent authorities of the Member State of departure". That provi- 2. The findings of the competent authorities sion incorporates the Community legisla- of a Member State made when inspections ture's intention to exclude other means of are carried out under the Community transit proof while at the same time facilitating the procedure shall have the same force in other task of the party concerned. A similar provi- sion contained in Article 71 of the imple- menting regulation, Regulation N o 223/77, 6 — Cited above (footnote 5), paragraphs 9 to 15.
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Member States as findings of the competent B — Analysis authorities of each of those Member States.'
11. The question submitted by the Cour d'Appel, Mons, consists of two parts. First, it asks whether the requirement that proof of 9. The Cour d'Appel, Mons, formed the the Community status of goods is in prin- view that it required an interpretation of the ciple to be provided exclusively by transit above provisions of Community law in document T2 or transit document T2 L is order to reach a decision in the proceedings compatible with Articles 9 and 10 of the EC before it. It has accordingly referred the fol- Treaty. Second, the Cour d'Appel seeks to lowing question to the Court for a prelimi- ascertain whether this requirement is consis- nary ruling under Article 177 of the E C tent with Articles 37(2) and 39(2) of Regu- Treaty: lation N o 222/77.
The first part of the question
' D o Community Regulations N o 222/77 and N o 223/77, laying down the rule that, save where otherwise provided, proof that goods originate in the Community may be pro- 12. As the Belgian Government and the vided only by transit document T2 or T2 L, Commission have argued, the answer to the comply with Articles 9 and 10 of the EEC first part of the question submitted has Treaty and are they compatible with Articles already been provided by the Court's above- 37(2) and 39(2) of Regulation N o 222/77 mentioned judgment in Trend-Moden Textil- which provide that the findings of the com- handel. The Council takes the same view. petent authorities of a Member State are to have the same force [in other Member States] as findings of the competent authorities of each of those Member States?' 13. The Court stated as follows in that judg- ment:
10. A total of 11 of the appellants in the '18. The order making the reference refers to national proceedings, the Kingdom of Bel- Trend-Moden's argument that the combined gium, the Federal Republic of Germany, the effect of the burden of proof and the limita- Council and the Commission took part in tion of the means of proof may be that cus- the proceedings before the Court. toms duties will be levied on goods which
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are not covered by the prescribed transit N o 222/77 and Commission Regulation documents but for which there is other (EEC) N o 223/77, subject to specified excep- proof of Community status, a result which is tions, of the possibility of establishing the contrary to the provisions of Articles 9 and Community status of goods vis-à-vis the 10 of the Treaty. customs authorities of the Member State of destination by means of any evidence other than transit documents T2 or T2 L affects the validity of the said regulations.' 7
19. It must be pointed out in that regard that Articles 9 and 10 of the Treaty are silent as to the means of proof and the burden of proof of the Community status of goods. They leave it to secondary Community legislation 14. I consider this analysis to be convincing. to settle those matters. The soundness of that decision, moreover, has not been called in question by any of the parties to the present proceedings.
20. Next, it should be recalled that the rules set out above are justified by the need to The second part of the question facilitate the movement of goods across the Community's internal frontiers, which is one of the basic principles of the common mar- ket. Providing those on whom the burden of proof normally falls with a standard and simple means of proving the Community status of goods, combined with the possibil- ity of producing such proof even after the frontier has been crossed, is consistent with 15. In contrast, the answer to the second that purpose and cannot therefore be part of the question submitted is not quite so regarded as contrary to Articles 9 and 10 of straightforward. The issue here is whether the EEC Treaty. proof of the Community status of goods can also be provided by reference to correspond- ing 'findings' by the customs authorities of a Member State within the meaning of Article 37(2) of Regulation N o 222/77 (which, by virtue of Article 39(2), is also applicable to the internal Community transit procedure). This matter has not as yet been clarified by 21. In view of the foregoing considerations, the Court. the reply must be that consideration of the question raised has disclosed no factor of such a kind as to make it appear that the exclusion by Council Regulation (EEC) 7 — Cited above (footnote 5), paragraphs 18 to 21.
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16. The Belgian Government argues that it is transit document, constitutes a special rule not at all certain that the telex of 13 March vis-à-vis Articles 37(2) and 39(2) and there- 1985 from the French customs authorities fore takes precedence over those provisions. contained or was intended to contain a find- It must, however, be borne in mind that ing as to the origin of the goods in question. Article 9 belongs to the 'general provisions' It refers in this regard to the content and of Title I of the regulation, whereas Articles context of that document. This is evidently a 37 and 39 feature in the special provisions on question of fact which the national court external (Title II) and internal (Title III) making the reference alone may answer. For Community transit. The German Govern- the purpose of replying to the second part of ment's argument does not therefore appear the question, I shall therefore, in what fol- to me to be direcdy conclusive. lows, proceed on the assumption that the telex referred to did indeed contain such a finding. 8
19. However, I share the view taken by the German and Belgian Governments and the Commission that, even in the light of 17. The wording of Article 37 is unquestion- Articles 37 and 39 of Regulation N o 222/77, ably compatible with the possibility that the proof of the Community status of goods can 'findings' referred to in Article 37(2) may as a rule — that is to say, apart from the also relate to the Community status of exceptions which that regulation itself allows goods. Article 37(2) of Regulation — be provided only by the documents N o 222/77 would then have to be regarded already mentioned several times. as a derogating provision, allowing proof of Community status to be provided, not by production of the document otherwise pre- scribed, but by an equivalent finding by the customs authorities of a Member State.
20. As the Court has already held, the rules of the Community transit procedure to be examined here have as their purpose 'to facilitate the transport of goods within the 18. The German Government, on the other Community by simplifying and standardiz- hand, argues that Article 9 of the regulation, ing the formalities to be carried out when which provides that the Member State internal frontiers are crossed'. ' Such a of departure is responsible for issuing the simplification and standardization of formali- ties, however, would be illusory if, instead of
8 — Such an interpretation may, for instance, find support in the fact that the telex mentioned draws a clear distinction between the Origin' of the goods and the place from which 9 — Trend-Moden TextühandeL cited above (footnote 5), para- they were imported. graph 16.
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using the prescribed transit documents, trad- argues, is therefore not applicable. The Bel- ers were free to use any other documents gian Government has expressed a similar issued by the customs authorities in question view. It is not here necessary to decide with corresponding findings as proof of the whether this is a correct interpretation of the Community status of goods. Nor, in my provisions in question. n It seems clear t o view, are there any grounds whatever for me in any event that findings made by cus- arguing that the Community legislature toms authorities under Articles 37(2) and might have intended to attribute such a 39(2) of Regulation N o 222/77 cannot broad meaning to Article 37(2). In this con- replace the proof of transit required under nection — and to this extent the argument that regulation. Those articles are therefore put forward by the German Government is not applicable in the present case. highly relevant — it should be borne in mind that Article 9 of the regulation provides the possibility of obtaining even retroactively an internal Community transit document. As the Court has already stated in Trend-Moden Textilhandel, this provision 'incorporates the Community legislature's intention to exclude other means of proof'. 10
22. A number of the appellants argue that this case involves criminal proceedings in which the accused must be presumed inno- cent until the contrary has been proved. At least in proceedings of this kind, they argue, and also in the absence of the prescribed transit documents, attention must therefore be paid to the actual origin of the goods if — 21. As the Belgian Government has cor- as is here the case — this can be established rectly argued, the rules contained in Articles in any other way. This argument cannot be 37(2) and 39(2) serve rather to facilitate dismissed out of hand. That said, however, cooperation among customs authorities. The my view is that the Court need not here Commission submits in this connection that examine that question — the resolution of those provisions thereby refer to 'inspec- which is in any event ultimately a matter for tions' in the context of transit procedures for the national court alone. It must be borne in which the prescribed transit document has mind that the offences alleged against the already been issued (or — one might add — accused are time-barred and that the judg- applied for). Since in the present case the ment of the Tribunal de Tournai ordered goods were not, to all appearances, being only payment of the customs duties plus transported 'under the Community transit default interest. procedure', Article 37(2), the Commission
11 — The wording does not in any case impose such a restrictive 10 — Judgment cited above (footnote 5), paragraph 15. interpretation.
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C — Conclusion
23. I accordingly propose that the Court reply as follows to the question referred by the Cour d'Appel, Mons:
The rule set out in Council Regulation (EEC) N o 222/77 and in Commission Regulation (EEC) N o 223/77 that, save as otherwise provided, proof of the Com- munity status of goods can be provided only by means of transit documents T2 or T2 L is compatible with Articles 9 and 10 of the E C Treaty and also with Articles 37(2) and 39(2) of Regulation N o 222/77, which provide that findings of the com- petent authorities of a Member State are to have the same force in other Member States as findings of the competent authorities of each of those Member States.
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