C-405/96

ORDER OF 7. 7. 1998 — JOINED CASES C-405/96, C-406/96, C-407/96 AND C-408/96

ORDER OF THE COURT 7 July 1998 *

In Joined Cases C-405/96, C-406/96, C-407/96 and C-408/96,

R E F E R E N C E to the Court under Article 177 of the EC Treaty by the Tribunal d'Instance, Saint-Denis, Réunion, France, for a preliminary ruling in the proceed- ings pending before that court between

Société Béton Express (C-405/96),

Société Nouvelle de Concassage (C-406/96),

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BÉTON EXPRESS AND OTHERS ν DIRECTION RÉGIONALE DES DOUANES DE LA RÉUNION

on the interpretation of Articles 9, 12 and 95 of the EC Treaty,

T H E COURT,

composed of: G. C. Rodriguez Iglesias, President, C. Gulmann, H . Ragnemalm, M. Wathelet and R. Schintgen (Presidents of Chambers), G. E Mancini, J. C. Mort- inho de Almeida, P. J. G. Kapteyn, J. L. Murray, D. Α. Ο. Edward (Rapporteur), J.-P. Puissochet, G. Hirsch, P. Jann, L. Sevón and K. M. Ioannou, Judges,

Advocate General: A. Saggio, Registrar: R. Grass,

ORDER OF 7. 7. 1998 —JOINED CASES C-405/96, C-406/96, C-407/96 AND C-408/96

(hereinafter 'Béton Express and Others') against the Direction Régionale des Douanes (Regional Customs Directorate), Réunion, for the refund of octroi de mer (dock dues) paid by them in respect of the period from 1 January 1993 to 30 April 1995.

3 Octroi de mer is a charge levied in the French overseas departments under Law N o 92-676 of 17 July 1992 relating to octroi de mer and implementing Council Decision 89/688/EEC of 22 December 1989 concerning the dock dues in the French overseas departments (OJ 1989 L 399, p. 46). That decision empowers the competent authorities to authorise a number of exemptions from octroi de mer, which, in principle, is imposed on all goods imported into the French overseas ter- ritories or produced in those territories. As is apparent from the order for refer- ence, the decision of the Regional Council of Réunion of 11 December 1992 results in a system exempting almost all local products.

4 Béton Express and Others take the view that octroi de mer constitutes a measure prohibited by Community law, in particular by Articles 9, 12, 95 and 227 of the EC Treaty.

5 The Direction Régionale des Douanes and the Région Réunion (Region of Réunion), on the other hand, maintain that the rules governing octroi de mer are consistent with both Decision 89/688 and Article 227 of the Treaty. That charge is therefore not discriminatory for the purpose of the first paragraph of Article 95 of the Treaty.

6 Since questions relating to Decision 89/688 and to the Law of 17 July 1992 had already been referred to the Court by the Tribunal Administratif (Administrative Court), Saint-Denis, Réunion, in Case C-212/96 Chevassus-Marche v Conseil Régional de L· Réunion, and by the Tribunal d'Instance, Paris, in Joined Cases C-37/96 and C-38/96 Sodiprem and Others v Direction Générale des Douanes, the Direction Générale des Douanes and the Région Réunion suggested to the refer- ring court that it should stay proceedings pending a ruling from the Court in the abovementioned cases.

' D o the rules laid down by Law 92-676 of 17 July 1992 "concerning octroi de mer and implementing Decision 89/688 of the Council of Ministers of the European Communities of 22 December 1989" have the effect of replacing a charge having equivalent effect to a customs duty on imports, as considered in the preliminary ruling of 16 July 1992 in Legros [Case C-163/90 Administration des Douanes et Droits Indirects ν Legros and Others [1992] E C R I-4625], by a genuine internal charge which is not discriminatory and which is consistent with the letter and spirit of the Treaty establishing the European Economic Community?'

9 The Tribunal d'Instance, Saint-Denis, considered that the reply which would be given by the Court to the question asked by the Tribunal Administratif, Saint- Denis, in Chevassus-Marche could provide only a partial response to the problems

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ORDER OF 7. 7. 1998 — JOINED CASES C-405/96, C-406/96, C-407/96 AND C-408/96

raised in the actions pending before it. It therefore stayed proceedings in order to refer to the Court for a preliminary ruling the following question, worded identi- cally in the four cases:

'Following the judgment delivered in Legros on 16 July 1992, has Law N o 92-676 of 17 July 1992, adopted in implementation of Decision 89/688 of the Council of Ministers of the European Communities of 22 December 1989, had the effect of replacing a charge having equivalent effect to a customs duty by a genuine internal charge which is non-discriminatory and thus complies with both the letter and the spirit of Article 95 of the Treaty, having regard, in particular, to the powers of exemption which it confers on the regional authorities, giving rise, in Réunion, to the decision of the Regional Council of 11 December 1992?'

invited the Member States and the other parties mentioned in Article 20 of the EC Statute of the Court of Justice to submit any observations they might have in that regard.

1 4 The French Government and the Commission have not objected with regard to the Court's intention to give its decision by reasoned order.

15 Béton Express and Others, on the other hand, consider that the question referred for a preliminary ruling in this case is not the same as the question in Sodiprem. They maintain that here the question is concerned, in particular, with the legality of the Law of 17 July 1992 in the light of the powers of exemption conferred on the regional authorities and, secondarily, with the decision of the regional council of 11 December 1992, in so far as they result in the reintroduction of a charge hav- ing equivalent effect to a customs duty which is prohibited by Community law. In Sodiprem the Court did not rule on the validity of that Law.

16 The short answer to that point is that the Court made it clear in Sodiprem, at para- graph 22, that it did not have jurisdiction within the framework of proceedings brought under Article 177 of the Treaty to give a ruling on the compatibility of a national measure with Community law. Referring to settled case-law, the Court added that it did, however, have jurisdiction to supply the national court with a ruling on the interpretation of Community law so as to enable that court to deter- mine whether such compatibility existed in order to decide the case before it, and the Court then did so.

17 It is accordingly appropriate, in accordance with Article 104(3) of the Rules of Procedure of the Court, to give a decision by reasoned order in the same terms as in Sodiprem.

hereby orders:

On a proper construction, Council Decision 89/688/EEC of 22 December 1989 concerning the dock dues in the French overseas departments precludes exemp- tions of a general or systematic order, which would thus amount to the rein- troduction of a charge having an effect equivalent to that of a customs duty. That decision does, however, authorise exemptions which are necessary, pro- portionate and precisely determined and which respect the strict conditions laid down in Article 2(3) thereof, interpreted in the light of the limits laid down in Article 226 of the EC Treaty.

Luxembourg, 7 July 1998.

R. Grass G. C. Rodriguez Iglesias

Registrar President

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