C-290/01

2. The question which has arisen is essen- tially whether, where the customs authority takes samples of imported goods in the 4. Article 2 of Directive 79/695 provides: presence of the declarant, 3who does not at that time challenge the representativeness of those samples, and the customs authority seeks payment of additional import duties on the basis of its analysis of the samples, the declarant may challenge the validity of 'The release for free circulation of [goods the order to pay the additional duties on the imported into the Community] shall be ground that the samples were not repre- sentative. 4 — Article 253 of Regulation No 2913/92 provides that it is to apply from 1 January 1994. 5 — Directive of 24 July 1979 on the harmonisation of 1 — Original language: English. procedures for the release of goods for free circulation, OJ 2 — Council Regulation (EEC) No 2913/92 of 12 October 1992 1979 L 205, p. 19. establishing the Community Customs Code, OJ 1992 L 302, 6 — Directive of 17 December 1981 laying down certain p. 1. provisions for implementing Council Directive 79/695/EEC 3 — The party who makes the customs declaration; see on the harmonisation of procedures for the release of goods paragraph 4 below tor the previous terminology. for free circulation, OJ 1982 1. 28, p. 38.

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conditional upon the lodging at a customs 5. When examining the goods, the customs office, in accordance with the conditions authority may take samples for analysis or laid down in this Directive, of an entry form for more detailed examination. The costs for release for free circulation, hereinafter arising from such analysis or more detailed referred to as "the entry". examination shall be borne by the admin- istrative authority.'

DERUDDER

7. Directive 82/57 implements certain 2. The declarant or the person designated provisions of Directive 79/695 including by him to be present at the examination of Article 9(1), (4) and (5). 7Article 11 of the goods shall provide the customs author- Directive 82/57 provides: ity with the assistance required to facilitate its work. ...'

'Where it decides to examine a part of the 9. Article 13(1) and (2) of Directive 82/57 goods only, the customs authority shall provides: inform the declarant or his representative which items it wishes to examine. The authority's choice shall be final.

'1. Where the customs authority decides to take samples, it shall so inform the declar- ant or his representative.

The findings of such partial examination shall apply to all goods covered by the entry in question. However, the declarant may request a further examination should he consider that the findings of the partial Should it consider this desirable, the cus- examination are not valid for the remainder toms authority may require the declarant to of the goods declared.' be present at the taking of samples, or to arrange to be represented by a person able to tender the authority the necessary assistance.

8. Article 12 of Directive 82/57 provides:

(a) release for free circulation; 'The declarant or the person designated by him to be present at the taking of samples shall render to the customs authority all the assistance needed to facilitate the opera- tion.'

11. The first paragraph of Article 15 of Directive 82/57 provides: (17) "Customs declaration" means the act whereby a person indicates in the prescribed form and manner a wish to place goods under a given customs procedure. 'Where the customs authority takes samples for analysis or more detailed examination, it shall authorise the release of the goods in question without waiting for the results of the analysis or examination, unless there are other grounds for not doing so.' (18) "Declarant" means the person making the customs declaration in his own name or the person in whose name a customs declaration is made.'

12. Even though the Customs Code was not applicable at the time of the facts giving rise to the main proceedings, it is useful to set out the analogous provisions since several of those submitting observations 14. Article 68(b) of the Code provides: refer to them.

'For the verification of declarations which 13. Article 4 of the Code lays down the they have accepted, the customs authorities following definitions: may ... examine the goods and take

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DERUDDER

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tative which items they wish to Import duties on rice examine. The custom authorities' choice shall be final.'

22. At the relevant time, Community import duties on rice were governed by 20. Article 242 provides: Regulation No 1418/76. 9 It is common ground that the duty on broken rice is lower than that on whole-grain rice. 10

'1. Where the customs authorities decide to take samples, they shall so inform the declarant or his representative.

23. 'Broken rice' is defined in point 3 of Annex A to Regulation No 1418/76 as 'grain fragments the length of which does 2. ... not exceed three quarters of the average length of the whole grain'. Grain measure- ments are to be taken on the basis of 'a representative sample from the consign- ment'. 11 Samples shall be taken in accordance with the methods laid down by the provisions in force.

28. After analysis of the samples taken, the customs authority concluded that the mix- ture in question did not contain at least The facts and the question referred 90% broken rice and that, accordingly, the rate applicable was the rate for whole-grain rice. The Collector of Customs and Excise ('the Collector') served on Derudder on 25 May 1992 an order to pay the additional import duties. Derudder sought annulment of the order to pay before the Tribunal d'instance (District Court), Bobigny, on a 26. In 1989 Tang Frères ('Tang') imported number of grounds, including that the a consignment of 'Thai flagrant [sic] broken method used by the customs authority in rice'. The rice was imported in several analysing the samples was flawed and that containers, each containing some 800 sacks the samples were not representative. of 25 to 30 kg. Derudder & Cie SA ('Derudder') carried out the customs form- alities on behalf of Tang. On the entry form for release for free circulation Derudder described the goods as 'broken rice'.

29. In April 1993 the Tribunal d'instance 13 — Regulation (EEC) No 2729/75 of 29 October 1975 on the ruled that, in order to determine the average import levies on mixtures of cereals, rice and broken ncc, OJ 1975 L 281, p. 18. With effect from 1 July 1995 the length of whole grains of rice within the terms 'levy' and 'levies' in Regulation No 2729/75 were replaced by 'duty' and 'duties' by Council Regulation (EC) No 3290/94 of 22 December 1994 on the adjustments and transitional arrangements required in the agriculture sector in order to implement the agreements concluded during the 14 — References m this Opinion to Derudder arc to be taken to Uruguay Round of multilateral trade negotiations, OJ include its representative, unless it is otherwise clear from 1994 L 349, p. 105. the context.

meaning of point 3 of Annex A to Regula- only for the sample itself and could not be tion No 1418/76, it was necessary to extrapolated to determine the real propor- consider the average length of the whole tion of broken rice in the container as a grains of rice contained in a sample from whole. the consignment of imported rice, without taking account of grains which were not fully developed. Before granting Derudder's application, the Tribunal d'instance ordered an expert's report for the purpose of (i) analysing one of the samples taken in order to determine the average length of the whole-grain rice on the basis of that method and (ii) determining whether broken rice represented 90% of the goods. 31. At the hearing in March 1996 Der- udder submitted that the customs authority had not demonstrated that duty at the higher rate was payable; that the samples taken were not representative with the result that it was not possible to determine whether the broken rice represented 90% of the total or, consequently, to apply the rate applicable to whole grain rice; that the distinction between mature and immature 30. The expert presented his report in grains proposed by the Court of Justice October 1994. He found that the propor- was, according to the expert, technically tions of broken rice in the six samples impossible to draw and that the analyses submitted to him was between 59.3% and made by the customs authority could 77% and therefore, as the customs' analysis accordingly not be used as evidence, so had concluded, significantly less than that the authority could not assert that the 90%. However, he expressed reservations relevant rate of duty was that applicable to as to both the method of analysis and the whole-grain rice. representativeness of the samples. With regard to the method of analysis, he stated in particular that it was technically impos- sible to disregard grains which were not fully developed, since there was no way of distinguishing such grains from mature grains. With regard to the representative- ness of the sample, the expert concluded that he had no evidence that the samples taken by the customs were representative of 32. The Collector asked the Tribunal the goods as a whole. He stated in d'instance to annul the expert's report in particular that there had been no plan for part on the ground that the expert had statistical sampling: the sample for each exceeded his remit in pronouncing on container had been taken from only one of points not referred to his expertise, namely approximately 800 sacks in the container, the validity of the sampling methods and that sack had been at the very front of proposed by the Court of Justice and the the container. The results of the analysis representativeness of the samples, which were accordingly in the expert's view valid had been taken in the presence of Derudder.

38. Tang, which restricts its analysis to the Community Customs Code, appears to 35. The Cour de Cassation, hearing the consider that the declarant remains so Collector's further appeal on a point of law, entitled even after the goods in question has stayed the proceedings and referred to have been released for free circulation and the Court for a preliminary ruling the consumed. The French Government and the question whether on a proper construction Commission in contrast consider that the of Article 70(1) of the Community Customs declarant is entitled to dispute the repre- Code a declarant who was present when the sentativeness of samples taken only for as customs authority took samples of the long as the goods remain available for goods entered but did not then challenge further sampling, while the Italian Govern- the representativeness of that sample may ment submits that the entitlement is extin- subsequently seek annulment of the order guished by the declarant's acceptance of the to pay the additional duties on the ground assessment of customs duties. that the samples were not representative.

39. The parties are divided in particular over the applicability of Article 11 of Directive 82/57, which permits the declar- 36. Written observations have been sub- ant to request a further examination of mitted by Tang, which has taken over the partially examined goods should he con-

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41. The legislation however is not unam- biguous. Directive 82/57, it must be remem- bered, is an implementing measure; it implements various provisions of Directive 79/695 including Article 9(1), (4) and (5) and Article 10(1). It is clear from Article 9 (5) of Directive 79/695 that the taking of samples is a particular form of examination 40. Although the legislation is not entirely of the goods. That is confirmed by Article clear, I consider that Tang's view (expressed 10(1) of that directive, which makes no in the context of the Code) is more separate mention of samples but clearly consistent with the structure of Directive envisages that the 'examination of goods' 82/57. Article 11 appears in Title II of that includes any taking of samples. directive, headed 'Verification of the entry form'. Title II is divided into four sections, headed 'A. Documentary verification', 'B. Examination of the goods', 'C. Taking of samples' and 'D. Attestation by the customs authority'. Section B comprises Articles 11 and 12; Section C comprises Articles 13 to 17. That structure suggests that the concepts of examination of the goods on the one hand and the taking of 42. The Customs Code, which replaced samples on the other were intended to be Directives 82/57 and 79/695, is similarly governed by different provisions. Partial not unambiguous and could be taken either examination on that interpretation does not way. On the one hand it could be argued encompass the taking of samples of, for that, since Article 70 of the Code, unlike example, goods such as those at issue in the Articles 68 and 69, refers to examination, main proceedings, the import duty on and in particular partial examination, which may vary depending on their precise alone, rather than to both examination composition. It means rather the examina- and the taking of samples, Article 70 does tion of part of a consignment of identical not apply to the taking of samples. On the

46. It will clearly further those objectives if a declarant is entitled to challenge a sample of imported goods on the basis that it is not representative and hence would not lead to 44. It is clear from the preamble to the imposition of the correct duties on those Directive 79/695 — which directive, as goods. The taking of a further sample in noted above, is implemented by Directive such circumstances will contribute to the 82/57 — that it sought to 'fix common rules correct application of customs duties. On of procedure for the release of goods for that basis, I see no reason to prohibit such a free circulation' and that those common challenge merely because the declarant was rules 'must make it possible to ensure the present when the sample was taken. correct application not only of customs duties, charges having equivalent effect, agricultural levies or other charges laid 15 — Ninth and tenth recitals. down within the framework of the common 16 — Final recital in the preamble to Directive 79/695. agricultural policy, but also of any other 17 — Fourth recital in the preamble to Directive 82/57.

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47. Moreover the right to challenge deci- samples initially taken are representative so sions taken by an authority is a general that the goods may be released for free principle which must be read broadly, circulation. If the customs authority decides currently enshrined in the customs context to take samples, it is required to inform the in Article 243(1) of the Code. 18 It underlies declarant, 19 who is required to give the both Article 11 and the other provisions. authority all the assistance needed to facilitate the operation. 20 The declarant is thus in a position to ensure that the samples initially taken are representative of the consignment as a whole.

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DERUDDER

52. That objection does not in my view it would frustrate the overall objective of preclude the interpretation I have the legislation if he remained entitled to proposed. Where samples are taken, there contest the representativeness when the are two grounds on which the results may goods were no longer available for further be open to challenge (both of which in fact samples to be taken. are at issue in the main proceedings in the present case, but only one of which is mentioned in the question referred).

21 — See Article 246(1) of Regulation No 2454/93. 22 — Cf.Article 37 of the Customs Code.

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the ensuing handling, transport or storage 59. Finally it is appropriate to mention the of the goods, I see no ground for preventing observations of the Commission concerning his challenging the representativeness of the non-implementation of Article 11 of such samples. It may be noted that Article Directive 82/57. It submits that, since 10(2) of Directive 79/695 envisages 'the directives cannot have horizontal direct subsequent verification by the competent effect, that provision cannot be directly authorities of the Member State in which invoked by the customs authority against the goods have been released for free the declarant if it has not been implemented circulation'. 23 in national law. The customs authority does not appear to have relied in the main proceedings on any provision of national law, thus suggesting that the directive had not been implemented. Nor does the 57. Where however the declarant cannot referring court mention any provision of so demonstrate the identity of the goods n a t i o n a l law in the o r d e r for and their condition, or a fortiori where reference. National legislation to the effect perishable goods, such as the rice at issue in that, once the imported goods could no the present case, have in the mean time been longer be sampled and examined, a declar- released for free circulation and consumed, ant could no longer contest the representa- it will manifestly no longer be possible to tiveness of samples taken in such circum- take further samples and the declarant's stances would, however, in the view of the entitlement to challenge the original sam- Commission be in accordance with the ples on the ground that they are not wording and objective of Article 11 of representative must lapse. Directive 82/57.

2. In the event of dispute, the declarant is event the answer to the question referred is entitled to challenge the results of a partial dictated by the scheme and objectives rather check and to request that the disputed than the wording of the Community information in the declaration be fully legislation. The Commission's general point checked.' none the less remains sound: national legislation which permits a declarant to challenge the representativeness of samples would be consistent with the scheme and objectives of the Community legislation provided that the goods remain available for further sampling and provided that, where the goods have in the mean time been released for free circulation, it can be demonstrated that the entire consignment 61. It is not obvious that that provision has since remained intact. may properly be regarded as adequate implementation of Article 11. However, that seems to me of little consequence, given my preferred view that Article 11 is not relevant, and my conclusion that in any

Conclusion

62. I accordingly consider that the question referred by the Cour de Cassation should be answered as follows:

Where a customs authority takes samples of imported goods in the presence of the declarant, who does not at the time challenge the representativeness of the samples, the declarant is not precluded, either by Council Directive 79/695/EEC of 24 July 1979 on the harmonisation of procedures for the release of goods for free circulation and Commission Directive 82/57/EEC of 17 December 1987 laying down certain provisions for implementing Directive 79/695, or by Council Regulation (EEC) No 2913/92 of 12 December 1992 establishing the Community Customs Code, from subsequently challenging the representativeness of the sample provided that the entire consignment of the goods remains available, with no possibility of any intervening alteration in their condition, for a further sample to be taken.