JUDGMENT OF 20. 3. 1980 — CASE 100/79 HAUPTZOLLAMT ESSEN v INTERATALANTA

In Case 100/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof [Federal Finance Court] for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the procedure and the observations submitted under Article 20 of the Statute of the Court of Justice of the EEC may be summarized as follows:

I — Facts and written procedure

Between 20 August and 24 September 1971 the company Interatalanta complied with the necessary formalities for placing five consignments of frozen beef and veal from South America in its private customs warehouse. A private customs warehouse (“offenes Zollager”) within the meaning of the German legislation is one not locked with two different keys (“ohne Zollmitverschluß”) as distinct from a double-locked customs warehouse (“Zollverschlußlager”). When the goods were withdrawn from the private customs warehouse between September and November 1971 the customs office responsible to the Hauptzollamt Essen charged, in addition to customs duties and ievies, monetary compensatory amounts (referred to as “Ausgleichsabgaben” in national law under the German implementing regulations of 14 May 1971) in accordance with the provisions of Regulation No 974/71 of the Council. The monetary compensatory amounts were calculated at the rates in force at the time of each removal from the warehouse and were, with one exception, higher than those in force when the goods were placed in the warehouse.

That method of calculation was objected to by Interatalanta, which took the view that the monetary compensatory amount should be at the rate applying when the goods entered the warehouse. Its objection was rejected and the company brought an action before the appropriate Finanzgericht [Finance Court] which upheld the claim. The Hauptzollamt appealed on a point of law to the Bundesfinanzhof.

By order dated 8 May 1979, registered at the Court on 25 June 1979, the Bundesfinanzhof stayed the proceedings and referred the following question to the Court for a preliminary ruling:

“Was it ultra vires for the national legislature, under its power to charge compensatory amounts on imports under Article 1 of Regulation (EEC) No 974/71, to specify, in the case of goods which have been given customs clearance for storage in a private customs warehouse (”offenes Zollager“) the day on which the goods are removed from the private customs warehouse as the relevant date for the application of the rate of compensatory amounts?”

Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC the Commission, represented by its Legal Adviser, Peter Gilsdorf, acting as Agent, submitted written observations.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry and to refer the case to the First Chamber pursuant to Article 95 of the Rules of Procedure.

II — Summary of written observations submitted to the Court

The Commission observes that the facts with which the case is concerned occurred during the period when the system of monetary compensation was first applied when the Community implementing provisions, at the time contained in Regulation No 1013/71 of the Commission, were still in an incomplete state. To resolve the problem it is necessary in the Commission's view to distinguish two sub-questions, that of determining the date to be taken into account in calculating the monetary compensatory amount and that of determining the date of importation through a private customs warehouse.

Regarding the first sub-question the Commission observes that the Community regulations applicable at the time still did not contain any provisions expressly concerning the determination of the date to be taken into account in calculating the monetary compensatory amount. It was only in Regulation No 648/73 (Official Journal L 64, p. 1) that measures were adopted to that effect: Article 7 provides that in trade with third countries provisions concerning the granting of export refunds and the charging of customs duties and levies shall apply to monetary compensatory amounts; for trade between Member States Article 8 states inter alia that the amount to be levied shall be that applicable on the day of the importation (Article 8 (1)) and that for the purpose of determining the compensatory amount to be levied the “date of importation” shall be the date used for determining customs duties and levies (Article 8 (3)). In the Commission's view those provisions merely enact and clarify certain principles which were already applicable before the adoption of that regulation.

To determine the relevant date for the calculation of the monetary compensar tory amounts, which are continually varying, is of fundamental importance for the functioning of the system. If it were left to the Member States to fix the relevant reference date, which might for example be the day the contract is made and not the day of importation, serious distortions might result. In this case the position would be the same if it were open to Member States to specify as the reference date either that of placing in the warehouse or that of removal therefrom for in extreme cases those dates might be separated by as much as five years.

The Commission therefore thinks that it is normal to take, as for levies, the date of importation, because the general economic circumstances are comparable and because levies or refunds and monetary compensatory amounts are somewhat interdependent even according to the system in force before 4 June 1973. Variations of the parity (or the central rate) of the dollar had repercussions on the amount of monetary compensation, but at the same time it also gave rise to variations (in the opposite direction) in the levies (or refunds) calculated on the basis of the world market prices expressed in dollars.

The case-law of the court is to this effect. Thus in the Judgment in Case 5/73 Balkan [1973] ECR 1091 the Court found that the calculation of the monetary compensatory amount was correct and thus approved the taking into account of the date of importation. The judgment in Case 94/77 Zerbone [1978] ECR 99 is even more significant (cf. paragraph 18 where it is stated : “The practice followed in all Member States of taking the day of importation or exportation as the reference date must be regarded as lawful”). Considered in isolation that wording, it is true, means only that the practice followed by the Member States, in the particular case Italy, is not contrary to Community law, but does not necessarily mean that Community law requires that practice.

Nevertheless if that wording is related to other observations of the Court on the question the conclusion must be drawn that already at the time in question Community law contained the principle that in determining monetary compensatory amounts it was right as regards imports to refer to the date of importation.

Regarding the second sub-question the Commission points out that the Council Directive No 69/74/EEC of 4 March 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to customs warehousing procedure (Official Journal, English Special Edition 1969 (I), p. 82) provides in Article 10 (1) that:

“... when goods deposited in warehouses are cleared for home use the customs duties, charges having equivalent effect and agricultural levies chargeable on importation shall be collected on the basis of the rates or amount applicable on the date of removal from the warehouse and according to the nature of the goods, the value for customs purposes and the quantity, as ascertained or accepted for that purpose by the customs authorities.”

That provision is based on the idea that it is when the amount of the customs duties and levies depends on the date at which the products in question ultimately enter the domestic market of the Community and come into competition with domestic products that their purpose is best achieved. That also applies to the charging of monetary compensatory amounts.

The effect of the customs warehousing procedure is precisely that no monetary compensatory amount is levied during the period of warehousing; on their removal from the warehouse the goods are to be put into free circulation or made subject to another customs procedure or they may be re-exported without any charge. In view of that uncertainty as to the destination of the goods it is not correct to say as the Bundesfinanzhof does that the goods “are already participating in trade in the Community” by the simple fact of crossing the frontier.

Generally speaking there is no fundamental difference in relation to the law on levies. In both cases it is a question of protecting a given price level as against imported goods.

Since Regulation No 648/73 was adopted the problem is expressly regulated. Since Article 7 of that regulation refers as a whole to the customs provisions in the case of the application of the monetary compensatory amounts in trade with nonmember States, there is no longer any doubt that Article 10 of Directive No 69/74/EEC also applies to monetary compensatory amounts. Article 8 (3) of Regulation (No 648/73 leads to the same conclusion as regards trade within the Community. The Commission is of the view that on this particular issue also all that has been done has been to enact as express rules of law what was already applicable before the regulation in question was adopted, in other words the provisions are solely declaratory.

The Commission observes that since the directive expressly refers to all private customs warehouses the above conclusion also applies to trade in goods which pass through a private customs warehouse.

The question as put by the Bundesfinanzhof does not properly get to the root of the problem. Not only is the national legislature not prevented from specifying the day of removal from the warehouse as the relevant date for determining the rate of the monetary compensatory amounts but on the contrary Community law requires it so to do.

In conclusion the Commission proposes that the Court should give the following answer:

“Where goods were imported from a nonmember State into the Community, placed in a private customs warehouse in the Federal Republic during August and September 1971 and removed therefrom between September and November 1971 and put into free circulation, the relevant date for application of the monetary compensatory amounts under Regulation (EEC) No 974/71 is the day of removal from the warehouse.”

The Commission, represented by N. Koch, acting as Agent, presented oral argument at the hearing on 29 November 1979.

The Advocate General delivered his opinion on 24 January 1980.

Decision

1. By order dated 8 May 1979, received at the Court on 25 June 1979, the Bundesfinanzhof pursuant to Article 177 of the EEC Treaty referred to the Court for a preliminary ruling a question on the interpretation of Article 1 of Regulation No 974/71 of the Council of 12 May 1971 on certain measures of conjunctural policy to be taken in agriculture following the temporary widening of the margins of fluctuation for the currencies of certain Member States (Official Journal, English Special Edition 1971 (I), p. 257).

2. This question has arisen in proceedings concerned with the calculation of the monetary compensatory amounts on five consignments of frozen beef and veal from South America by the customs office responsible to the Hauptzollamt Essen, the defendant in the main proceedings. The plaintiff in the main action, the German company Interatalanta, had obtained customs clearance for the goods between 20 August and 24 September 1971 for storage in its private customs warehouse. A private customs warehouse (“offenes Zollager”) within the meaning of the German legislation is one which is not a double-locked customs warehouse (“ohne Zollmitverschluß”) in contrast to a double-locked customs warehouse (“Zollverschlußlager”). The customs office calculated the monetary compensatory amount on the basis of the rates applicable (between September and November 1971) on each removal from the warehouse, which with one exception were higher than those applying when the goods were placed in the warehouse. Interatalanta, which took the view that the monetary compensatory amount should be calculated on the basis of the rates applicable when the goods were placed in the warehouse, objected and on rejection of the objection brought the matter before the relevant Finanzgericht, which upheld the claim. The defendant in the main action appealed on a point of law against that judgment to the Bundesfinanzhof.

3. The Bundesfinanzhof put the question whether it was ultra vires for the national legislature, under its power to charge compensatory amounts on imports under Article 1 of Regulation No 974/71, to specify, in the case of goods which have been given customs clearance to storage in a private customs warehouse, the day on which the goods are removed from the private customs warehouse as the relevant date for the application of the rate of the compensatory amounts.

4. The Community regulations applying at the time in question contained no provision as to the determination of the date to be taken into account in calculating the monetary compensatory amounts. Only as from 9 March 1973 did Regulation No 648/73 of the Commission of 1 March 1973, (Official Journal L 64, p. 1) in conjunction with Council Directive No 69/74/EEC of 4 March 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to customs warehousing procedure (Official Journal, English Special Edition 1969 (I), p. 82) make express provision with regard thereto.

5. It follows from these two provisions that where goods imported into the Community from nonmember States are put into a private customs warehouse in a Member State, the reference date to be taken as a basis in applying the rate of the monetary compensatory amounts is the day of removal from the warehouse.

6. Accordingly it must be declared that before the relevant Community provisions entered into force the national legislature was empowered to make rules specifying the same reference date.

7. The answer to be given to the Bundesfinanzhof should therefore be to the effect that it was not ultra vires for the national legislature to specify the day of removal from the warehouse as the reference date for the application, in accordance with the provisions of Regulation No 974/71, of the rate of monetary compensatory amounts in the case of the importation into the Community of goods from nonmember countries, which were placed in a private customs warehouse in a Member State in September 1971 and subsequently put into free circulation.

Costs

8. The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the Bundesfinanzhof, the decision on costs is a matter for that court.

On those grounds, THE COURT in answer to the question referred to it by the Bundesfinanzhof by order dated 8 May 1979, hereby rules: