C-181/97

I-485

OPINION OF MR RUE-JARABO — CASE C-181/97

— Mr van der Kooy appealed against that 1 order for reference, which does not allow assessment to the Gerechtshof (Regional the nature of the dispute in the main proceed­ Court of Appeal), Amsterdam, which dis­ ings to be clearly determined, the Court of missed the appeal on the ground that the Justice should declare the question inadmis­ territory of the Netherlands Antilles, from sible. which the vessel had come, 'did not form part of the territory of a Member State for the purposes of the Sixth Directive'.

6. In that government's view, the factual par­ ticulars in the order for reference d o not dis­ 4. H e appealed against the judgment of the close why the national court considers that Gerechtshof, Amsterdam, to the Hoge Raad there is a link between the vessel and an O C T der Nederlanden, which stayed the proceed­ or what is meant in this case by the fact that ings and referred the following question to the vessel 'was previously in free circulation the Court of Justice for a preliminary ruling: in the Netherlands Antilles'. N o r is it stated whether the appellant's vessel was merely calling at port in the Netherlands or whether it was being used by Mr van der Kooy for private or commercial purposes.

11. The national court makes no reference whatsoever to that matter, which is not at issue in the question submitted by it, being 9. Accordingly, I do not think it appropriate merely one of the surrounding factual cir- to uphold the objections made by the French cumstances. It is not therefore appropriate to Government concerning the admissibility of reformulate the question, since the Court of the preliminary question: on the contrary, the Justice has repeatedly held (and recently con- premisses relied on by the national court, one firmed) 5 '... that, under the division of juris- of which is the prior link between the vessel diction provided for by Article 177 of the and an OCT, will have to be accepted as they Treaty in preliminary-ruling proceedings, it is stand. That the vessel was in free circulation for the national court alone to determine the in the Netherlands Antilles is regarded as subject-matter of the questions which it wishes proven by the Hoge Raad, whose question to refer to the Court. The Court cannot, at consists specifically in determining whether the request of one party to the main proceed- or not the entry into the Netherlands of a ings, examine questions which have not been vessel in such circumstances constitutes an submitted to it by the national court. If, in importation within the meaning of the Sixth view of the course of the proceedings, the Directive. national court were to consider it necessary to obtain further interpretations of Commu- nity law, it would be for it to make a fresh reference to the Court (Case 311/84 CBEM v CLT and IPB [1985] ECR 3261, paragraph 10; Case C-337/88 SAFA v Aministrazione delle Finanze dello Stato [1990] ECR I-1, paragraph 20; and Case C-196/89 Nespoli and Grippa [1990] ECR I-3647, paragraph 23)'. 10. N o r do I consider the request for refor- mulation of the question, unilaterally made by the appellant in the main proceedings, to be well founded. By making that request, the 4 — The appellant's contention is that the vessel, having been built in the Netherlands, originated in a Member Sute and does appellant seeks to act in the stead of the refer- not lose that status in any circumstances, with the result that ring court in requesting the preliminary ruling. at all times it fulfils the conditions laid down by Article 9 of the Treaty, even after leaving Community territory. After accusing the Hoge Raad of erring as to 5 — Case C-189/95 fronzén [1997] ECR I-5909, paragraph 79.

' 1 . "Importation of goods" shall mean: — "Community" and "territory of the Com- munity" shall mean the territory of the Member States as defined in respect of each Member State in paragraphs 2 and 3,

(a) the entry into the Community of goods which do not fulfil the conditions laid down in Articles 9 and 10 of the Treaty establishing the European Economic Community ... — "third territory" and "third country" shall mean any territory other than those

6 — OJ 1977 L 145, p. 1. 7 — As amended b y Council Directive 9 2 / 1 1 1 / E E C of 14 December 8 — As amended by Council Directive 91/680/EEC of 16 December 1992 unending Directive 77/388/EEC and introducing sim- 1991 supplementing the common system of value added tax plification measures with regard to value added tax (OJ 1992 and amending Directive 77/388/EEC with a view to the abo- L 384, p. 47). lition of fiscal frontiers (OJ 1991 L 376, p. 1).

I-488

VAN DER KOOY v STAATSSECRETARIS VAN FINANCIËN

defined in paragraphs 2 and 3 as a terri- include, as provided in the Treaty and in tory of a Member State. accordance with the timetable set out therein, 'the association of overseas countries and ter- ritories in order to increase trade and pro- mote jointly economic and social develop- ment'. (2) For the purposes of this directive, the "territory of the country" shall be the area of application of the Treaty establishing the Euro- pean Economic Community as defined in respect of each Member State in Article 227. 17. Part Four of the Treaty (Articles 131 to 136) is entitled 'Association of the overseas countries and territories'. The purpose of that association, pursuant to Article 131, is to pro- mote the economic and social development of ..." the O C T and to establish close economic relations between them and the Community as a whole.

OPINION OF MR RUIZ-JARABO — CASE C-181/97

19. Article 133 of the Treaty provides: Before the Convention referred to in the pre- ceding paragraph expires, the Council shall, acting unanimously, lay down provisions for a further period, on the basis of the experi- ence acquired and of the principles set out in this Treaty.' ' 1 . Customs duties on imports into the Member States of goods originating in the countries and territories shall be prohibited in conformity with the progressive abolition of customs duties between Member States in accordance with the provisions of this Treaty. 21. O n the day of the importation at issue in these proceedings, there was applicable, ratione temporis, Council Decision 91/482/EEC of 25 July 1991 on the associa- tion of the overseas countries and territories 2. Customs duties on imports into each of the European Economic Community 10 country or territory from Member States or (hereinafter 'Decision 91/482'), which, from the other countries or territories shall according to Article 241 thereof, entered into be progressively abolished in accordance with force on 20 September 1991; pursuant to the provisions of Articles 12, 13, 14, 15 and Article 240(1) of that decision, it was to apply 17. for a period of 10 years 'from 1 March 1990'. 11

…'

22. Article 101 of that decision provides:

20. Finally, Article 136 of the Treaty pro- vides:

' 1 . Products originating in the O C T shall be imported into the Community free of cus- toms duties and charges having equivalent effect. 'For an initial period of five years after the entry into force of this Treaty, the details of and procedure for the association of the coun- 10 — OJ 1991 L 263, p. 1; corrigendum OJ 1991 L 331, p. 23. tries and territories with the Community shall 11 — Concerning the problems of retroactivity raised by that pro- be determined by an Implementing Conven- vision, see points 24 to 43 of my Opinion in Case C-310/95 Road Air [1997] ECR I-2229, referred to in paragraph 47 of tion annexed to this Treaty. Se judgment of the Court of Justice of 22 Apil1997.

— are accompanied by an export certificate.

(c) I shall finally conclude that the 'entry into the Community of goods' — and there- fore import thereof for the purposes of VAT under Article 7 of the Sixth Direc- tive — occurs when, on fulfilment of the other requirements, the good in question comes from one of the O C T where it » was in free circulation.

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OPINION OF MR RUIZ-JARABO — CASE C-181/97

(i) Trade between the OCT and the Commu- Articles 131 to 136 of the E C Treaty, what nity Community provisions are applicable to them and to what extent.

24. In my Opinion in Road Air I emphasise that, in defining the legal rules on relations between the O C T and the Community, it was 27. In the Road Air case, the issue was whether important to clarify 'the extent to which each Part Four of the EEC Treaty, at the relevant of the provisions of the EEC Treaty may be date in the main proceedings (June 1991), applied to them, having regard to Articles 131 precluded the levying of customs duty on the to 136 of that Treaty.' importation into the Community of goods originating in a third country which were in free circulation in the Netherlands Antilles.

I-492

VAN DER KOOY v STAATSSECRETARIS VAN FINANCIËN

States. The latter trade comprises intra- 136 thereof are there any provisions referring Community operations, whereas trade to the imposition of VAT on imports from between the O C T and the Community the OCT. The special rules for association of involves genuine imports. the O C T do not therefore involve any special arrangements regarding VAT.

(b) Article 133(1) of the Treaty does not apply to products which, after importa- tion into those countries and territories, are thereafter re-exported to one of the Member States. 31. It is true that, under Decision 91/482, products originating in O C T are allowed to be imported into the Community free of cus- toms duties and charges having equivalent effect (Article 101(1)). It is also true that that exemption also applies to products which do (c) To interpret that provision otherwise — not originate in the O C T but are in free cir- for example, to the effect that, for prod- culation in an O C T and are re-exported as ucts of that kind, the O C T should be such to the Community, provided that they granted a regime similar to that operated have paid in the O C T concerned customs between the Member States themselves duties or charges having equivalent effect of — would mean '... that the O C T would a level equal to or higher than the customs form part of the common customs area, a duties applicable in the Community. result which goes far beyond what was envisaged by the Treaty'. 14

(d) In each case, it is necessary to observe the decisions which the Council has adopted 32. However, there is no question of either for the period in question on the basis of exemption applying to VAT, since VAT is Article 136 of the Treaty. neither a customs duty nor an equivalent charge. The Court of Justice gave a ruling to that effect in its judgment of 5 May 1982 in Schul. 15 It is therefore inappropriate to con- tend for an analogy in order to extend to an indirect levy such as VAT provisions laid down for and applicable only to customs 30. Neither in Part Four of the Treaty nor in duties or charges having an effect equivalent the Council decisions adopted under Article thereto.

34. First, the O C T do not form part of the 'territory of a Member State' in the sense given to that term by Article 7 of the Sixth Directive. The reference made in paragraph 1 of that article to paragraphs 2 and 3 thereof 37. That conclusion, moreover, is consistent makes it clear that the 'territory of a country' with the scheme of the Sixth Directive: if even is as defined for each Member State by Article certain national territories to •which the Treaty 227 of the Treaty, a provision which, for its is, in principle, applicable, are regarded for part, provides that not the Treaty, but rather the special Association rules referred to ear- lier, are to apply to the OCT. 16 — As in the case of the island of Helgoland and the territory of Büsingen, in the case of the Federal Republic of Ger- many; Ceuta, Melilla and the Canary Islands, in the case of Spain; Livigno, Campione d'Italia and the national waters of Lago di Lugano, in the case of the Italian Republic; the Overseas Departments, in the case of the French Republic; and Mount Athos in the case of the Hellenic Republic 17 — The rationale for that exclusion is set out in the recitals in the preamble to Directive 92/111, cited above: 'in order to guarantee the neutrality of the common system of turnover tax in respect of the origin of goods, the concept of a third territory and the definition of an import must be supple- mented ... certain territories forming part of the Community 35. Second, the territorial scope of the Sixth customs territory are regarded as third territories for the purposes of applying the common system of value added tax Directive does not even coincide with the ... value added tax is therefore applied to trade between the entire 'territory' of each country or Member Member States and those territories according to the same principles as apply to any operation between the Commu- State since certain national territories there- nity and third countries.'

38. Both the Commission and the French and Netherlands Governments reach that same conclusion, which also coincides with the view of the national court. 18 The appellant in the main proceedings is also compelled to admit that Article 7 of the Sixth Directive would, in principle, justify the levying of VAT on the import transaction with which the main proceedings are concerned. Although in his observations submitted to the Court of Justice the appellant challenges the VAT assess- ment, he does so not because he denies that the entry of a vessel originating in an O C T or in free circulation there constitutes an import transaction, but for a quite different reason: in his view, the vessel was not, in this case, a good fulfilling the conditions laid down in Articles 9 and 10 of the E E C Treaty. 40. The appellant contends in his observa- tions, primarily, that the vessel, having been built in the Netherlands, originated from one of the Member States and never lost that status, so that it cannot be regarded as having been imported. In the order for reference, quite properly, the opposite view is taken. A number of established facts are relevant here 39. This problem, to which I referred ear- (the removal of the vessel from the Commu- lier, 19 was not raised by the referring court nity customs territory, its sale to a Bahamas and, in my opinion, cannot properly be con- company, and so forth) and there are other factors not recorded in the proceedings. The appraisal and legal characterisation, in the 18 — T h e Hoge Raad shares the view of the Gerechtshof that the territory of the Netherlands Antilles cannot be regarded as the "territory of a Member State" within the meaning of Article 3(1) and (2) of the Sixth Directive in conjunction with Article 227 of the EC Treaty, and that, in the absence of the requisite implementing measures, under Article 132(1) of the EC Treaty it likewise cannot be treated as such for the purposes of levying the tax on business turnover.' 20 — See part 3.3 of the order for reference, as regards 'assess- 19 — See points 10 and 11 above. ment of the grounds of appeal'.

43. As regards the analogous application of Article 101(2) of Decision 91/482 (which allows deduction from the customs import 22 — The appellant invokes, to that end, the judgment of the Court of Justice in Case 47/84 Sécretaire d État aux Finances v Schul [1985] ECR 1491, but that decision is concerned with a different problem, and one which, moreover, relates 21 — Inter a l i a , Article 4 o f C o u n c i l Regulation(EEC)No 2913/92 to a period before changes were made affecting VAT in rela- of 12 October 1992 approving the Community customs tion to intra-Community transactions: the issue was whether code (OJ 1992 L 302, p. 1) provides: 'Without prejudice to it was appropriate to include or exclude from the taxable Articles 163 and 164, Community goods shall lose their amount for VAT the amount of that tax, already paid in the status as such when they are actually removed from the cus- exporting State, when a good from another Member State toms territory of the Community'. was imported into a Member State by a private individual.

I - 496

VAN DER KOOY v STAATSSECRETARIS VAN FINANCIËN

Conclusion

45. I therefore suggest that the Court of Justice give the following answer to the question submitted by the Hoge Raad of the Netherlands:

The entry into the Netherlands of an item of goods which was in free circulation in the Netherlands Antilles and does not meet the requirements of Articles 9 and 10 of the EC Treaty must be classified as entry into the territory of the Community and therefore as the importation of an item of goods for the purposes of Article 7 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment.