C-237/96

AMELYNCK AND OTHERS

J U D G M E N T O F T H E C O U R T (Fourth Chamber) 25 September 1997*

In Case C-237/96,

R E F E R E N C E to the Court under Article 177 of the E C Treaty by the Cour d'Appel, Mons (Belgium), for a preliminary ruling in the criminal proceedings pending before that court against

Eddy Amelynek and Others

and

JUDGMENT OF 25. 9. 1997 — CASE C-237/96

Advocate General: C. O. Lenz, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Messrs Rinaldi, Boeki and Laznicka, defendants in the main proceedings, by Robert Himpler, of the Crainhem Bar,

— Messrs Poznantek, Leidensdorf, Flaks, Ak, Bromberg and Suffys, and Ms Cornet and Ms Szczekacz, defendants in the main proceedings, by Marc Baltus, of the Brussels Bar,

— M r Scapardini, defendant in the main proceedings, by Huguette Remy-Libert, of the Brussels Bar,

having regard to the Report for the Hearing,

after hearing the oral observations of the Belgian Minister for Financial Affairs, represented by Bernhard van de Walle de Ghelcke, of the Brussels Bar; Messrs Poznantek, Leidensdorf, Flaks, Ak, Bromberg and Suffys, and Ms Cornet and Ms Szczekacz, represented by Marc Baltus; Mr Scapardini, represented by Huguette Remy-Libert; the Council, represented by Maria Cristina Giorgi; and the Commission, represented by Michel Nolin, at the hearing on 25 June 1997,

after hearing the Opinion of the Advocate General at the sitting on 26 June 1997,

gives the following

Judgment

1 By judgment of 28 June 1996, received at the Court on 9 July 1996, the Cour d'Appel (Court of Appeal), Mons, referred for a preliminary ruling under Article 177 of the E C Treaty a question concerning the interpretation and validity of Council Regulation (EEC) N o 222/77 of 13 December 1976 on Community tran- sit (OJ 1977 L 38, p . 1) and Commission Regulation (EEC) N o 223/77 of 22 December 1976 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure (OJ 1977 L 38, p . 20).

4 As a result of those findings, the Belgian Minister for Financial Affairs instituted criminal proceedings against the accused before the Tribunal Correctionnel (Criminal Court), Tournai, and demanded payment of customs duties in respect of those imports, on the ground that, failing production of the T2 or T2 L documents provided for under Regulations No 222/77 and N o 223/77 respectively, the regula- tions -which were applicable at the material time, the accused were not in a position to demonstrate that the goods which had entered Belgium were of Community origin.

5 By judgment of 9 February 1993, the Tribunal Correctionnel found that the crimi- nal proceedings were time-barred, but took the view that the facts complained of had been established and accordingly ordered 28 of the accused to pay customs duties plus default interest.

6 Twenty of those so ordered argued that the customs duties claimed were not pay- able on the ground that the goods were, in their view, of Community origin. They

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AMELYNCK AND OTHERS

accordingly appealed against that decision to the court in Mons, relying, as proof of the goods' origin, on the telex sent by the D N E D on 13 March 1985, which referred to the goods as being of French origin.

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io In this regard, Regulation N o 222/77 sets out two procedures for Community transit. The first, referred to as the 'procedure for external Community transit', applies essentially, according to Article 1(2) of that regulation, to goods which do not satisfy the conditions laid down in Articles 9 and 10 of the Treaty, that is to say, goods which come from non-member countries and are not in free circulation in the Community. The second, referred to as the 'procedure for internal Commu- nity transit', applies essentially, according to Article 1 (3) of Regulation N o 222/77, to goods which do satisfy the conditions laid down in Articles 9 and 10 of the Treaty, that is to say, goods which originate in the Member States or are in free circulation in the Community, known as 'Community goods'.

n In accordance with Article 12(1) of Regulation N o 222/77, goods carried under the procedure for external Community transit must be covered by a declaration made on a T l form.

i2 With regard to internal Community transit, Article 39 of Regulation N o 222/77 makes provision for proof relating to this type of transit, laying down in paragraph (1) that all goods to be carried under this transit procedure must be covered by a declaration made on a T2 form.

i3 Since Regulation N o 222/77 envisages cases in which the Community transit sys- tem is not obligatory, Community goods which are not carried under the pro- cedure for internal Community transit are covered by Regulation N o 223/77, which provides in Article 1(8), as a method of proof, for the issue of document T2 L, the content of which corresponds to document T2 for internal Community transit.

i7 As regards the burden of proof, it follows from the provisions of Regulation N o 222/77 that the applications to obtain those documents, the declarations required, the other formalities to be completed, the submission of those documents to the competent authorities and the proper performance of transit operations are matters which in general are the responsibility of the parties concerned or their representatives (Articles 11(a), 12(3) and 13). Those provisions, which feature in Title II of Regulation N o 222/77 dealing with external Community transit, are also applicable to internal Community transit by virtue of Article 39(2) of Regulation N o 222/77, which states that, save as otherwise provided in Articles 40 and 41, the provisions of Title II are to apply mutatis mutandis to the procedure for internal Community transit. The corresponding provisions in Regulation N o 223/77 also apply to document T2 L.

is As the Court held in paragraph 20 of Trend-Moden Textilhandel, those rules are justified by the need to facilitate the movement of goods within the Community, which is one of the basic principles of the common market. Providing those on whom the burden of proof normally falls with a standard and simple means of

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JUDGMENT OF 25. 9. 1997 — CASE C-237/96

proving the Community status of goods, combined with the possibility of producing such proof even after the frontier has been crossed, is consistent with that purpose and cannot therefore be regarded as contrary to Articles 9 and 10 of the Treaty.

i9 In the light of the foregoing, the answer to the first question must be that the rule laid down in Regulations N o 222/77 and N o 223/77 to the effect that, save as oth- erwise provided, proof of the Community status of goods may be provided only by means of transit documents T2 or T2 L is consistent with Articles 9 and 10 of the Treaty.

23 Apart from the exceptions expressly provided for by Regulation N o 222/77, such as, in particular, carriage by air (Article 45), carriage by pipeline (Article 46), along with that of goods contained in travellers' luggage (Article 49), findings of this kind made by the authorities of a Member State cannot be used as proof of the Community status of goods, since this would lead to the reintroduction of the simultaneous application of national administrative procedures which those rules, as is clear from the ninth recital in the preamble to the regulation, are designed precisely to avoid. The view that these findings may replace documents T2 or T2 L would therefore run counter to the purpose served by the rules in question, which, as the Court pointed out in paragraph 16 of Trend-Moden Textilhandel, cited above, is to facilitate the transport of goods within the Community by simplifying and standardizing the formalities to be carried out when internal frontiers are crossed.

24 This interpretation is, moreover, corroborated by Article 9 of Regulation N o 222/77 and Article 71 of Regulation N o 223/77, which provide for the retroac- tive issue of document T2 and document T2 L respectively. As the Court pointed out in Trend-Moden Textilhandel, paragraph 15, those provisions incorporate the Community legislature's intention to exclude other means of proof while at the same time facilitating the task of the party concerned.

25 In addition, Article 37(2) of Regulation N o 222/77 requires that the findings of the competent authorities of the Member States be made during inspections of goods being transported under the Community transit procedure, whether external or internal. It follows that the probative value of those findings is conditional on the goods in question, such as those in the main proceedings, qualifying for the inter- nal Community transit procedure. That cannot, however, be the case with regard to goods that are not accompanied by declarations made on forms T2 or T2 L.

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

in answer to the question referred to it by the Cour d'Appel, Mons, by judgment of 28 June 1996, hereby rules:

1. The rule laid down in Council Regulation (EEC) N o 222/77 of 13 December 1976 on Community transit and Commission Regulation (EEC) N o 223/77 of 22 December 1976 on provisions for the implementation of the Commu- nity transit procedure and for certain simplifications of that procedure to the effect that, save as otherwise provided, proof of the Community status of goods may be provided only by means of transit documents T2 or T2 L is consistent with Articles 9 and 10 of the EC Treaty.

2. Article 37(2) of Regulation N o 222/77 does not allow proof of the Commu- nity status of goods to be provided by means of the findings of the compe- tent authorities of a Member State made when inspections are carried out under the Community transit procedure.

Murray Kakouris Kapteyn

Delivered in open court in Luxembourg on 25 September 1997.