C-114/96

T H E C O U R T (Sixth Chamber),

composed of: G. F. Mancini (Rapporteur), President of the Chamber, J. L. Murray and P. J. G. Kapteyn, Judges,

Advocate General: M. B. Elmer, Registrar: H . von Holstein, Deputy Registrar,

* Language of the case: French.

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after hearing the oral observations of Mr Kieffer and Mr Thill, represented by Marc Thewes, the Luxembourg Government, represented by Alain Lorang, of the Luxembourg Bar, the Council, represented by Frederic Anton, and the Commis- sion, represented by Jürgen Grunwald, assisted by Jean-Francis Pasquier, at the hearing on 16 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 27 February 1997,

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gives the following

Judgment

4 Under the first paragraph of Article 5 of the Regulation, private individuals are exempt from the obligations implied b y the preparation of the statistics referred to in Article 4. The first sentence of the second paragraph of Article 5 provides:

'This exemption shall also apply to the party responsible for providing information who, being liable to account for VAT, qualifies, in the Member State in which he is responsible for providing information, for one of the special schemes provided for by Articles 24 and 25 of Directive 77/388/EEC.'

5 The first paragraph of Article 8 of the Regulation provides that the obligation to supply the information required by the system is incumbent on any natural or legal person who is involved in the trading of goods between Member States.

6 The statistical information required by the Intrastat system is to be covered, under Article 13(1) of the Regulation, by periodical declarations to be sent by the party responsible for providing the information to the competent national departments, by deadlines and under conditions which the Commission is to lay down, using the management committee procedure. Under Article 14, a party responsible for providing information who fails to fulfil his obligations under the Regulation is to be liable to penalties laid down by the Member States in accordance with their national provisions.

7 Under Article 20(5) of the Regulation, the party responsible for providing the information who is 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, giv- ing 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 which are the subject of the delivery'.

8 Article 21 of the Regulation provides that, on the statistical data medium to be transmitted to the competent departments, without prejudice to Article 34, goods are to be designated in such a way as to permit easy and precise classification in the finest relevant subdivision of the version of the combined nomenclature in force at the time, and that the eight-digit code number of the corresponding subdivision of the combined nomenclature is also to be given for each type of goods.

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(e) the nature of the transaction;

(ŕ) the delivery terms;

(g) the presumed mode of transport.

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2. Member States may not prescribe that data other than those listed in paragraph 1 be provided on the statistical data medium, except for the following:

1 1 Under the first and second subparagraphs of Article 28(4) of the Regulation, assimilation thresholds exempt parties required to provide information from the obligation to supply the declarations referred to in Article 13(1); they fulfil that

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obligation by the periodic tax declaration which they make as parties liable to account for VAT. Those thresholds are to be set by the Member States at higher levels than the exclusion thresholds. Under Article 28(5), simplification thresholds permit parties required to provide information to state, in the declarations referred to in Article 13(1), for each type of goods only the eight-digit code number of the corresponding subdivision of the combined nomenclature identifying the type of goods, the Member State of consignment or destination, and the value of the goods. The first subparagraph of Article 28(6) prescribes that assimilation and sim- plification thresholds are to be expressed in annual values of intra-Community trade operations.

12 The third subparagraph of Article 28(6) provides that assimilation and simplifica- tion thresholds are to apply separately to intra-Community operators at the dis- patch stage and intra-Community operators at the arrival stage.

i3 Under Article 28(8), the simplification thresholds are to be set at E C U 100 000 for dispatch and E C U 100 000 for arrival. The Commission may raise them, using the management committee procedure.

The national legislation

u Article 7 of the Luxembourg Law of 9 July 1962 establishing a central statistical and economic research service imposes a fine for failure to comply with the obliga- tion to make declarations under the Regulation. The amount of the fine has been increased several times, most recently by Article IX of the Law of 13 June 1994 on penalties. According to the judgment making the reference, a fine may currently be imposed of LFR 10 001 to 100 000.

i7 Such a fine is imposed on any natural person who fails to make the declaration, and the conviction is recorded in Schedules Nos 1 and 2 of his criminal record, with the result that it is brought to the notice of the judicial and administrative authorities and public corporations set out in Article 1 of the Ministerial Order of

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22 November 1977 determining the list of administrative authorities and public corporations entitled to Schedule N o 2 of the criminal record. It appears from the national court's judgment that non-payment of the fine may result in committal to prison, which may be imposed as an alternative sentence by the criminal courts.

KIEFFER AND THILL

export in excess of the annual threshold which triggers the requirement to make the said declarations; lastly, they claim that this impediment would encourage the sale of the goods on the national market.

22 The national court considered that the detailed declaration required by the Regu- lation constitutes an additional constraint to which traders doing business on the national market alone are not subject. Moreover, it stated that the requirement to make that declaration, and the consequent increase in the obligations to be com- plied with by the undertakings concerned, could have a deterrent effect on small and medium-sized undertakings in Luxembourg whose activities extend beyond the national territory, having regard to the small extent of Luxembourg territory.

23 In those circumstances, it considered that it should be ascertained whether such an impediment was justified from the point of view of the objectives of the Regu- lation and whether those objectives could not have been attained by means con- stituting less of a constraint. It therefore stayed proceedings and referred the fol- lowing questions to the Court for a preliminary ruling:

' 1 . In so far as it requires Member States to obtain from every undertaking exceeding the stipulated exclusion, assimilation and simplification thresholds a detailed declaration of all its intra-Community imports and exports, has Council Regulation (EEC) N o 3330/91 of 7 November 1991 introduced a measure having an effect equivalent to a quantitative restriction on trade in goods between Member States prohibited by Articles 30 and 34 of the E E C Treaty?

25 O n the first point, the defendants in the main proceedings submit that the Regu- lation imposes costs and constraints on undertakings, since they are obliged to obtain for each transaction, whatever its value, a whole series of complex data, in particular the eight-digit code from the combined nomenclature. Moreover, having regard to the detailed nature of the declarations required and the fact that it is obligatory in both the Member State of dispatch and that of destination of the goods, they submit that the obligation goes beyond what is necessary.

26 The Luxembourg Government, the Council and the Commission, on the other hand, point out the importance for the internal market of having sufficiently

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precise information on intra-Community flows. Moreover, they submit that any restrictive effects which the obligations to make declarations might have on the free movement of goods are too indirect and uncertain to be capable of obstructing intra-Community trade; the new collection system established by the Regulation in fact imposed a lighter burden compared with its predecessor and net benefits for undertakings.

27 It is settled law that the prohibition of quantitative restrictions and of all measures having equivalent effect applies not only to national measures but also to measures adopted by the Community institutions (see in particular to this effect Case 15/83 Denkavit NederUnd v Hoofdproduktschap voor Akkerbouwprodukten [1984] ECR 2171, paragraph 15, and Case C-51/93 Meyhui v Schott Zwiesel GUswerke [1994] ECR 1-3879, paragraph 11).

32 The Council submits, first, that the risk of additional expense is limited, since the undertakings have all the relevant data available at the time when they carry out their economic operations. Second, the various thresholds were established pre- cisely in order to enable account to be taken of the interests of those responsible for providing information. Third, undertakings have available to them free of charge modern data-processing tools such as, at Community level, the I D E P / C N 8 data-capture software developed by the Commission.

33 According to the Court's case-law, in order to establish whether a Community measure complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (Case C-426/93 Germany v Council [1995] ECR 1-3723, paragraph 42).

34 While the obligation to make declarations under the Regulation does specifically affect cross-frontier trade, and drawing u p the declarations takes time and involves expense, particularly for small and medium-sized undertakings, it does not neces- sarily follow that those restrictive effects are disproportionate to the aim pursued.

35 First, even though undertakings are obliged to make declarations in respect of all transactions, different thresholds have been established precisely in order to enable account to be taken of their interests and not to impose a burden on them which is disproportionate to the results which users of the statistics are entitled to expect.

Costs

40 The costs incurred by the Luxembourg Government, the Council of the European Union and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

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O n those grounds,

T H E C O U R T (Sixth Chamber),

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