C-190/00
ECLI:EU:C:2001:85
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BALGUERIE AND OTHERS
OPINION OF ADVOCATE GENERAL MISCHO delivered on 8 February 2001 1
I — Facts and procedure 4. Between 19 October 1994 and 11 August 1995, the French Customs Administration carried out an investigation into those imports and established that the dates should have been declared under the tariff heading of 'dates, fresh or dried, in 1. This case is referred by the Cour d'appel immediate packings of a net content of 35 (Court of Appeal) de Paris (France) in the kg or less', imports of which are subject to context of criminal proceedings against Mr customs duty at 12%. Balguerie and others who are charged with the offence of undeclared importation of prohibited goods.
5. The appellants in the main proceedings referred the matter to the Commission de conciliation et d'expertise douanière (Cus- toms Arbitration and Advisory Commis- 2. Between 12 December 1991 and sion), which in the opinion it issued con- 27 April 1994 the appellants in the main sidered that the dispute did not concern the proceedings imported dates from the improper use of a tariff heading, but the United States of America, delivered in interpretation of the Community rules boxes weighing 15 pounds (7.5 kg). determining the packaging of goods for import or export.
3. The goods were imported under the 6. At the material time the rules were set tariff heading '[d]ates, fresh or dried, for out in Commission Regulation (EEC) packing for retail sale into immediate No 4142/87 of 9 December 1987 deter- packings of a net content of 11 kg or less', mining the conditions under which certain and were thus eligible for suspension of goods are eligible on import for a favour- customs duties and a reduced VAT rate of able tariff arrangement by reason of their 5.5%. end-use. 2
1 — Original language: French. 2 — OJ 1987 L 387, p. 81.
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7. The matter was brought before the upon the granting by the competent autho- Tribunal de grande instance (Regional rities of the Member State in which the Court) de Melun (France) by direct sum- goods are declared for entry into free mons, and Mr Balguerie and others were circulation, of a written authorisation to found guilty of the offence of undeclared the person importing those goods into free importation of prohibited goods, and circulation or having them so imported. ordered jointly and severally to pay, in particular, the sum of FRF 288 563 by way of duties and taxes evaded. The court found that it was 'unnecessary' for the appellants in the main proceedings 'to repackage the goods for retail sale in immediate packings of a net content of 11 kg or less'. Further- 2. Without prejudice to the provisions of more, it found that, on the day of the the following articles, the granting of the investigation, the relevant records, required authorisation provided for in paragraph 1 by Regulation No 4142/87, had not been shall impose an obligation to: provided for inspection.
8. The appellants lodged an appeal against that decision with the Cour d'appel de Paris, which asks 'whether Commission (a) put the goods to the prescribed end- Regulation No 4142/87 of 9 December use; 1987, and the conditions imposed for its application in regard to imports of dates under the procedure for the suspension of customs duties by reason of the end-use of the goods, preclude such goods being imported in original packings with a con- tent of 11 kg or less'. (b) pay the amount of uncollected import duties if the goods are not put to the prescribed end-use;
I I — The Community rules
9. Article 3 of Regulation No 4142/87 pro- (c) keep records such as to enable the vides: competent authorities to carry out any checks which they consider necessary to ensure that the goods are put to the prescribed end-use, and to preserve such records for such period as is '1. The benefit of the tariff arrangement required under the relevant provisions referred to in Article 1 shall be conditional in force;
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(d) permit inspection of the records pro- 11. Certain categories of dates are granted vided for in subparagraph (c); and a 'favourable tariff arrangement by reason of their end-use' under Council Regulation (EEC) No 1517/91 of 31 May 1991 tem- porarily suspending the autonomous Com- mon Customs Tariff duties on a number of agricultural products. 3
(e) submit to any other measure of control which the competent authorities may deem appropriate to check the actual use of the goods and provide any information required for that purpose.
12. The regulation lists 24 categories of agricultural products. In respect of dates, it includes the following provisions:
3. The competent authorities may withhold the authorisation from persons unable to offer the safeguards considered necessary.
CN code Description of Autonomous goods duties (%) Ex 0804 10 00 Dates, fresh or 0 dried, for the processing industry, other 4. The granting of the authorisation may be than for the subject to the provision of security fixed by production of the competent authorities.' alcohol (a) Ex 0804 10 00 Dates, fresh or 0 dried, for packing for retail sale into immediate packings of a net content not exceeding 11 kg 10. Article 6(1) of Regulation No 4142/87 (a) states that the amount of uncollected import duties shall be paid if the goods have not been put to the prescribed end- use. Article 6(2) provides that the waste and scrap which result, in particular, from 13. Footnote (a) is drafted as follows: the processing of the goods, together with 'Control for the use for this special purpose the losses due to natural causes, shall be regarded as goods having been put to the end-use. 3 — OJ 1991 L 142, p. 7.
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shall be carried out pursuant to the relevant 16. It is not in dispute, nor can it be, that Community provisions'. Only the second of the dates in question have been prepared these tariff suspensions is in issue in this for retail sale in 7 kg boxes or in 1 kg case. plastic trays, following sorting and check- ing, which satisfies the requirements as to end-use.
14. By virtue of Article 1 of Regulation No 1517/91, this suspension was valid 17. In this respect they submit that even if from 1 July 1991 to 30 June 1992. It was the dates were imported in packings con- renewed, for the period from 1 July 1992 taining less than 11 kg, they were repack- to 30 June 1993, by Regulation (EEC) aged in order to satisfy the demands of No 1431/92 4 and, for the period from their customers. 1 July 1993 to 30 June 1994, by Regula- tion (EEC) No 1421/93. 5
18. Since the goods have been repackaged, Regulation No 4142/87 has been complied with, and the products should therefore be granted temporary suspension of customs III— Summary of observations submitted duty. to the Court
15. Mr Balguerie and others state that, in 19. The French Government points, firstly, order for an importer to benefit from to the general Community rules and claims temporary suspension, the fresh or dried that, given that the threshold for distin- dates must be intended to be packed for guishing between loose and packaged retail sale in direct packings having a net goods has been set at 11 kg, it follows that content of 11 kg or less. when the dates are imported in packings containing less than 11 kg, they are already packaged for retail sale. They cannot, 4 — Council Regulation of 16 May 1992 temporarily suspend- therefore, qualify for the tariff suspension ing the autonomous Common Customs Tariff duties on a number of agricultural products (OJ 1992 L 151, p. 1). intended for loose products. The process of 5 — Council Regulation of 7 June 1993 temporarily suspending repackaging in fact carried out is therefore the autonomous Common Customs Tariff duties on a number of agricultural products (OJ 1993 L 140, p. 6). irrelevant.
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20. The Commission states that it is appar- likely to compromise the grant of favour- ently not in dispute that the products in able tariff treatment by reason of the end- question were fresh or dried dates, and that use of the dates, such circumstances should they were packaged for retail sale in direct not lead simply to a finding that the dates packings having a net content of 11 kg or were already put up in direct packings less. It states that the question whether the having a content of 11 kg or less. That fact contents prior to packaging already weigh alone is, in the Commission's view, irrelev- 11 kg or less is not addressed by the ant for the grant of the tariff preference. wording of the tariff headings under which they have been declared.
21. Consequently, according to the Com- IV — Assessment mission, the imported products are covered by the wording of the tariff headings under which they were declared.
25. The question asked by the Cour d'appel de Paris is 'whether Commission Regula- tion No 4142/87 of 9 December 1987, and the conditions imposed for its application in regard to imports of dates under the 22. It is not the purpose of the repackaging procedure for the suspension of customs of dates to compromise the end-use for duties by reason of the end-use of the which they have been declared, and it may goods, preclude such goods being imported even be explained, in the Commission's in original packings with a content of 11 kg view, by the requirements of retail selling. or less'.
23. Regulation No 4142/87 does not pro- 26. Let us therefore consider, first, whether hibit such handling, but is intended to Regulation No 4142/87 provides the ensure effective control of the end-use. answer to that question.
24. The Commission considers, lastly, that 27. This regulation, the relevant provisions if the national court finds, on the basis of of which I have set out above, introduces the circumstances of the case, that there has control mechanisms intended to ensure that been manipulation or fraud or even action goods — of whatever type — which
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receive a favourable import arrangement by 31. Not having found any text setting out virtue of their end-use are in fact put to that such conditions or implementing measures, use. These mechanisms include, amongst I take the view that I must refer, as I invite others, a written authorisation, the grant of the French Government to do, to the which is subject to an obligation to keep Council regulations establishing the sus- records so as to enable the competent pension of duty for certain categories of authorities to carry out the necessary dates under the Common Customs Tariff. checks.
32. In doing so I find, firstly, that Regula- tion No 1517/91 and the successive regula- tions renewing this suspension6 do not 28. It is, of course, for the national court to refer to dates for retail sale 'in direct determine whether all of those conditions packings having a net content not exceed- are satisfied in this case. ing 11 kg', 7but to those for packing for retail sale into packages not exceeding this weight.
29. I do not see, however, any provision of 33. Dates intended for sale in shops in their the regulation which provides an answer to original packaging are therefore excluded the question whether dates intended for from the tariff suspension, even if that packing for retail sale in direct packings packaging contains only 11 kg, or less. with a content of 11 kg or less must be imported in packings of more than 11 kg in order to be eligible for suspension of the 12% duty set by the Common Customs Tariff.
34. Secondly, the text does not use the phrase 'dates for packaging or repackaging for retail sale', either. The situation arising in the main action, that is, a repackaging, is
30. The national court also asks whether 6 — See paragraph 14 above. 7 — That is because these regulations use the phrase 'of a net the 'conditions imposed for the application' content not exceeding 11 kg' and not 'with a net content of of Regulation No 4142/87 are such as to 11 kg or less' which appears in the reference for a preliminary ruling. Nothing, in my view, attaches to this provide an answer to the question asked. difference.
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not, therefore, covered by the text of the 39. Nevertheless, the Council omitted to Council regulation. include such a condition in the text.
40. It seems to me necessary in any event to 35. Conversely, however, the text does not consider, in addition to the wording of the state that the dates in question must be suspension measure, its aim. imported in packages weighing more than 1 1 kg.
41. In this respect the Commission has drawn our attention to the first two recitals in the preamble to Regulation No 1517/91, 36. May one, nevertheless, assume that the and the succeeding regulations, which state Council intended this to be the case? as follows:
'... production in the Community of the 37. The French Government, the Tribunal products specified in this regulation is de grande instance de Melun and the Cour currently inadequate or non-existent; ... d'appel de Paris consider that it is this producers cannot meet the needs of user interpretation that should be upheld, since industries in the Community; only 'loose' dates or dates in large packages 'necessitate' packaging, that is, require the importer in fact to carry out packaging before the dates can be sold by retail in packings not exceeding 11 kg. ... in certain cases it is in the interest of the Community to suspend the autonomous Common Customs Tariff'.
38. I agree that it is highly likely that the Council started from the premiss that dates must be presented to customs in quantities 42. The purpose of the suspension is, there- greater than 11 kg, especially as it is in this fore, to safeguard the interests of user context that the phrase 'for packing for industries, and the successive Council regu- retail sale' is best understood. lations contain two provisions to this end.
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43. Firstly, they suspend the Common achieved, it is enough that the dates are in Customs Tariff duty in favour of 'dates, fact packaged before sale, even if this fresh or dried, for the processing industry, 8 means repackaging. other than for the production of alcohol', and, secondly, they suspend this duty, by means of the text in issue in this case, in favour of the packing industry.
47. It follows that, even if the intention of the Council as to the volume of packings in 44. The French Government told us, in this which dates must be presented to customs respect, that: was otherwise, it is not appropriate to impose a condition which, as we have seen, does not appear in the wording of the provision in question, and which is not required by the aim of the measure.
'with regard to dates, the subject of this case, at the instigation of France, wishing to support the packing industry for fruits originating in third countries, the suspen- sion arrangement was introduced in 1970 to meet the competitive challenge of pre- packed North African products imported into the Community with suspension of 48. To do otherwise would flout the duty'. requirements of legal certainty.
45. That seems plausible in the light of the wording of the recitals in the preambles to the Council regulations. 49. It should also be remembered that Regulation No 4142/87 determining the conditions under which certain goods are eligible on import for a favourable tariff arrangement by reason of their end-use establishes control mechanisms intended to ensure that only products which have in 46. It seems to be clear, therefore, that, for fact been packaged or repackaged can the aim of the tariff suspension to be benefit from the tariff suspension. The conditions laid down by this regulation must obviously be complied with in their 8 — Emphasis added. Heading ex 0804 10 00, Taric code 11, 21 (see, for example, Regulation No 1421/93). entirety.
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V — Conclusion
50. I therefore propose that the Court answer the question posed by the Cour d'appel de Paris in the following terms:
Commission Regulation (EEC) No 4142/87 of 9 December 1987 determining the conditions under which certain goods are eligible on import for a favourable tariff arrangement by reason of their end-use, and Council Regulation (EEC) No 1421/93 of 7 June 1993 temporarily suspending the autonomous Common Customs Tariff duties on a number of agricultural products do not prevent dates from qualifying for the suspension of customs duty provided for by the regulation solely on the ground that they are imported in original packings having a content of 11 kg or less.
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