61988J0117

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Free movement of goods - Community transit - Community status of goods - Means of proof limited to forms T2 and T2L alone - Compatibility with Articles 9 and 10 of the Treaty

( EEC Treaty, Arts 9 and 10; Council Regulation No 222/77; Commission Regulation No 223/77 )

The rule laid down in Regulation Nos 222/77 and 223/77 on Community transit that only transit documents T2 or T2L may be used to prove the Community status of goods to the customs authorities of the importing Member State, unless Community legislation provides otherwise, cannot be regarded as contrary to Articles 9 and 10 of the Treaty .

Articles 9 and 10 are silent as to the means of proof and the burden of proof of the Community status of goods . They leave it to secondary Community legislation to settle those matters, and, moreover, the provision of a standard and simple means of proof, combined with the possibility of producing such proof even after the frontier has been crossed, is justified by the need to facilitate the movement of goods across the Community' s internal frontiers, which is one of the basic principles of the common market .

In Case C-117/88

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht ( Finance Court ) Duesseldorf for a preliminary ruling in the proceedings pending before that court between

Trend-Moden Textilhandels GmbH

and

Hauptzollamt Emmerich ( Principal Customs Office, Emmerich ),

on the interpretation of Article 9(2 ) of the EEC Treaty and of Articles 1(4 ) and 9 of Council Regulation ( EEC ) No 222/77 of 13 December 1976 on Community transit ( Official Journal 1977, L 38, p . 1 ),

THE COURT ( Fourth Chamber )

composed of : C . N . Kakouris, President of Chamber, T . Koopmans and M . Diez de Velasco, Judges,

Advocate General : M . Darmon

Registrar : H . A . Ruehl, Principal Administrator

after considering the observations submitted on behalf of

the Commission of the European Communities, by Joern Sack, Legal Adviser, acting as Agent,

the German Government, by Martin Seidel, acting as Agent,

the Spanish Government, by Javier Conde de Saro, Director-General of the Office for Coordinating Community Legal and Institutional Affairs and by Rosario Silva de Lapuerta, abogado del Estado, acting as Agents,

having regard to the Report for the Hearing and further to hearing on 11 October 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 9 November 1989,

gives the following

Judgment

1 By an order of 5 March 1988, which was received at the Court on 14 April 1988, the Finanzgericht Duesseldorf referred to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling a question on the interpretation of Article 9(2 ) of the EEC Treaty and of Articles 1(4 ) and 9 of Council Regulation ( EEC ) No 222/77 of 13 December 1976 on Community transit ( Official Journal 1977, L 38, p . 1 ).

2 That question arose in proceedings between Trend-Moden Textilhandels GmbH, which deals in textiles and is based in Rees, Federal Republic of Germany ( hereinafter referred to as "Trend-Moden "), and the Hauptzollamt Emmerich ( hereinafter referred to as "the Hauptzollamt ").

3 The documents before the Court show that between March 1980 and March 1981 Trend-Moden imported textiles from the Netherlands into the Federal Republic of Germany without paying duties . The Hauptzollamt requested payment of import duties amounting to DM 29 890.90 on the ground that Trend-Moden had not produced dispatch documents to prove that the goods in question met the conditions laid down in Article 9(2 ) of the EEC Treaty . In particular, the Hauptzollamt refused to accept as valid proof of the Community status of the imported goods declarations and documents submitted by Trend-Moden in which its Netherlands supplier certified that the goods in question originated in the Community or were in the Community in free circulation . The Hauptzollamt took the view that under Council Regulation No 222/77, cited above, such proof could be supplied only by means of a T2 or T2L transit document .

4 It emerges from the order making the reference that the Finanzgericht Duesseldorf inclines to support Trend-Moden' s argument that means of proof other than Community transit documents must be accepted if Article 9(1 ) of the EEC Treaty is not to be rendered meaningless; however, the arguments of the Hauptzollamt have led the national court to doubt the correctness of that argument .

5 The Finanzgericht Duesseldorf took the view that the dispute raised a problem concerning the interpretation of Community law and decided, pursuant to Article 177 of the EEC Treaty, to stay the proceedings and refer to the Court of Justice for a preliminary ruling the following question :

"Is Article 9(2 ) of the Treaty establishing the European Economic Community to be interpreted as meaning that goods will be treated as originating in a Member State and will therefore be exempt from customs duty only if this is established by means of a transit document in accordance with Articles 1(4 ) and 9 of Regulation ( EEC ) No 222/77?"

6 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the observations lodged at the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

7 It is clear from the wording of the question referred for a preliminary ruling that the national court starts from the assumption that Council Regulation No 222/77 provides that the only means of establishing the Community origin of goods is the transit document for which it makes provision, thereby excluding any other means of proving Community origin . Consequently, it asks whether Article 9(2 ) of the EEC Treaty must be interpreted as meaning that that provision itself directly authorizes proof of the Community origin of goods by any other means of proof, which would mean that the provisions of Regulation No 222/77 would be invalid in so far as they preclude acceptance of means of proof other than the aforementioned transit document .

Regulation No 222/77

8 Before the question referred for a preliminary ruling is answered, it must be pointed out that the national court' s basic assumption is correct; Regulation No 222/77 does not allow the Community origin of goods to be proved vis-à-vis the customs authorities of the Member State of destination except by means of the document which it prescribes for that purpose . That emerges from the following considerations .

9 Regulation No 222/77 lays down two Community transit procedures . One procedure, referred to as the external Community transit procedure, applies essentially, as is clear from Article 1(2 ) of Regulation No 222/77, to goods which do not satisfy the conditions laid down in Articles 9 and 10 of the EEC Treaty, namely goods which come from non-member countries and are not in free circulation in the Community; the other procedure, referred to as the internal Community transit procedure, applies essentially, as is clear from Article 1(3 ) of Regulation No 222/77, to goods which satisfy the conditions laid down in Articles 9 and 10 of the EEC Treaty, namely goods originating in the Member States or which are in free circulation within the Community, known as "Community goods ".

10 Under Article 12(1 ) of Regulation No 222/77, any goods carried under the procedure for external Community transit must be covered by a declaration on a form T1 .

11 Under Article 39(1 ) of Regulation No 222/77, any goods that are carried under the procedure for internal Community transit, in other words essentially Community goods, must be covered by a declaration on a form T2 . Thus, as a general rule, form T2 is the means of proof of the Community status of goods subject to the internal Community transit procedure .

12 It must be pointed out that there are specific provisions of Regulation No 222/77 which provide for cases in which Community goods are not carried under the procedure for internal Community transit .

13 For those Community goods which are not carried under the procedure for internal Community transit, when that procedure is not compulsory, Commission Regulation ( EEC ) No 223/77 of 22 December 1976 on provisions for the implementation of the Community transit procedure and for certain simplifications of that procedure ( Official Journal 1977, L 38, p . 20 ) prescribes as the means of proof document T2L, the contents of which are the same as those of document T2 for the internal Community procedure ( see the ninth recital in the preamble and Article 1(8 ) of Regulation No 223/77 ).

14 It follows from the above that Regulations Nos 222/77 and 223/77 lay down the rule that the Community status of goods may be proved only by means of document T2 or document T2L, subject to specified exceptions .

15 That interpretation is borne out by Article 9 of Regulation No 222/77 which provides that where, in the cases provided for in the regulation, "the provisions of the Treaty establishing the European Economic Community which relate to free movement of goods are only applied on presentation of an internal Community transit document issued to establish the Community status of the goods, the party concerned may, for any valid reason, obtain that document subsequently from the competent authorities of the Member State of departure ". That provision incorporates the Community legislature' s intention to exclude other means of proof while at the same time facilitating the task of the party concerned . A similar provision contained in Article 71 of the implementing regulation, Regulation No 223/77, provides that the document T2L may be issued retroactively .

16 That interpretation is justified by the purpose of the rules in question, which is to facilitate the transport of goods within the Community by simplifying and standardizing the formalities to be carried out when internal frontiers are crossed .

The question referred for a preliminary ruling

17 It must now be considered whether the Community rules satisfy Articles 9 and 10 of the Treaty in so far as they do not allow the Community status of goods to be proved vis-à-vis the customs authorities of the Member State of destination by means other than transit documents T2 or T2L .

18 The order making the reference refers to Trend-Moden' s argument that the combined effect of the burden of proof and the limitation of the means of proof may be that customs duties will be levied on goods which are not covered by the prescribed transit documents but for which there is other proof of Community status, a result which is contrary to the provisions of Articles 9 and 10 of the Treaty .

19 It must be pointed out in that regard that Articles 9 and 10 of the Treaty are silent as to the means of proof and the burden of proof of the Community status of goods . They leave it to secondary Community legislation to settle those matters .

20 Next, it should be recalled that the rules set out above are justified by the need to facilitate the movement of goods across the Community' s internal frontiers, which is one of the basic principles of the common market . Providing those on whom the burden of proof normally falls with a standard and simple means of proving the Community status of goods, combined with the possibility of producing such proof even after the frontier has been crossed, is consistent with that purpose and cannot therefore be regarded as contrary to Articles 9 and 10 of the EEC Treaty .

21 In view of the foregoing considerations, the reply must be that consideration of the question raised has disclosed no factor of such a kind as to make it appear that the exclusion by Council Regulation ( EEC ) No 222/77 and Commission Regulation ( EEC ) No 223/77, subject to specified exceptions, of the possibility of establishing the Community status of goods vis-à-vis the customs authorities of the Member State of destination by means of any evidence other than transit documents T2 or T2L, affects the validity of the said regulations .

Costs

22 The costs incurred by the Commission of the European Communities, the German Government and the Spanish Government, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT ( Fourth Chamber ),

in answer to the question referred to it by the Finanzgericht Duesseldorf, by an order of 5 March 1988, hereby rules :

Consideration of the question raised has disclosed no factor of such a kind as to make it appear that the exclusion by Council Regulation ( EEC ) No 222/77 and Commission Regulation ( EEC ) No 223/77, subject to specified exceptions, of the possibility of establishing the Community status of goods vis-à-vis the customs authorities of the Member State of destination by any means of evidence other than transit documents T2 or T2L, affects the validity of the said regulations .