61990J0334

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Agriculture - Monetary compensatory amounts - Grant - Compound feedingstuffs falling within subheadings 23.07 B I a) 1 or 2, 23.07 B I b) 1 or 2 or 23.07 B I c) 1 or 2 - Importation into a Member State whose currency has depreciated - Obligation to declare the complete composition of the product when passing customs - Possibility of subsequent rectification to avoid the loss of entitlement to payment - None

(Commission Regulation No 495/79, Art. 1(1) and Commission Regulations Nos 2901/81, 1071/82 and 1235/82, note (9) to Part 1 of Annex I)

The provisions of Regulation No 495/79 on the application of monetary compensatory amounts in respect of certain cereal-based compound feedingstuffs, set out in Note (9) to Part 1 of Annex I to Regulations Nos 2901/81, 1071/82 and 1235/82, as amended, fixing the monetary compensatory amounts and certain coefficients and rates required for their application, must be interpreted as meaning that an economic operator who, when completing customs formalities on the importation of compound feedingstuffs for animals falling within subheadings 23.07 B I a) 1 and 2, 23.07 B I b) 1 and 2 and 23.07 B I c) 1 and 2 of the Common Customs Tariff into a Member State the currency of which has depreciated, fails to declare the complete composition of the product and the exact content by weight of non-milk constituents broken down by tariff heading, loses all entitlement to payment of monetary compensatory amounts and may not subsequently rectify that failure.

In the case of the products in question, for which the payment of monetary compensatory amounts is subject to particular rules, the aim of which is to do away with artificial trade flows, it is particularly necessary to have effective supervision, which, since it must relate to the precise composition of the products, can be effectively carried out only at the time of clearance through customs, since a subsequent check gives no assurance that the declarations were truthfully made.

In Case C-334/90,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Première Instance (Court of First Instance), Verviers (Belgium) for a preliminary ruling in the proceedings pending before that court between

Belgian State

and

Marichal-Margrève SPRL,

on the interpretation of Commission Regulation (EEC) No 495/79 of 14 March 1979 on the application of monetary compensatory amounts in respect of certain cereal-based compound feedingstuffs (Official Journal 1979 L 65, p. 14),

THE COURT (Fifth Chamber),

composed of: R. Joliet, President of the Chamber, F. Grévisse, President of Chamber, J.C. Moitinho de Almeida, G.C. Rodríguez Iglesias and M. Zuleeg, Judges,

Advocate General: F.G. Jacobs,

Registrar: D. Louterman, Principal Administrator,

after considering the written observations submitted on behalf of:

- the Belgian State, by the Minister for Economic Affairs, acting as representative of the Office Central des Contingents and Licences (OCCL), assisted by Benoît Cambier and Luc Cambier, of the Brussels Bar,

- the Commission of the European Communities, by Patrick Hetsch, a member of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Belgian Government, Marichal-Margrève SPRL, represented by Alain Houart, of the Verviers Bar, and the Commission of the European Communities, at the hearing on 22 October 1991,

after hearing the Opinion of the Advocate General at the sitting on 28 November 1991,

gives the following

Judgment

1 By judgment of 22 October 1990, which was received at the Court on 30 October 1990, the Tribunal de Première Instance, Verviers, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Regulation (EEC) No 495/79 of the Commission of 14 March 1979 on the application of monetary compensatory amounts in respect of certain cereal-based compound feedingstuffs (Official Journal 1979 L 65, p. 14).

2 Those questions were raised in proceedings between the Belgian State and Marichal-Margrève SPRL concerning the repayment by that company, and the payment to it, of monetary compensatory amounts (hereinafter referred to as "MCAs").

3 Between 5 March 1982 and 17 May 1983 Marichal-Margrève SPRL (hereinafter referred to as "the company") imported into Belgium maize cakes falling within tariff subheading 23.07 BI c) 1 (forage used in animal feeding containing more than 30% by weight of starch and less than 10% by weight of milk products) of the Common Customs Tariff (hereinafter referred to as "the CCT") in the version then in force.

4 In response to the company' s applications, the Office Central des Contingents and Licences (Central Office for Quotas and Licences, hereinafter referred to as "the Central Office") of the Belgian Ministry of Economic Affairs granted MCAs in the form of thirty-five payments totalling BFR 311 192 in respect of imports made between 5 March 1982 and 2 February 1983.

5 After administrative checks, carried out after the making of those payments, had shown that, contrary to the provisions of note (9) to Part 1 of Annex I ("Cereals") to the Commission regulations fixing MCAs for the period in dispute applicable to products falling within subheading 23.07 BI, the company had not, when completing customs formalities, furnished the declaration of the complete composition of the imported products and the exact content by weight of non-milk constituents broken down by tariff heading (hereinafter referred to as the "declaration of composition"), the Central Office decided, first, to require the company to reimburse the BFR 311 192 which had, in those circumstances, in its view, been unduly granted and, secondly, to refuse to pay MCAs requested by the company for imports made between 8 February and 17 May 1983.

6 Although the company then produced a copy of a request for information which was sent to the French customs authorities by its French supplier for the purpose of determining the tariff heading applicable to the imported product and which set out details of its composition, the Central Office maintained its claim for reimbursement of the MCAs and insisted that, since the particulars requested had not been provided at the time when the customs formalities were completed, the company had consequently lost any right to MCAs and could not rectify its application ex post facto.

7 Since the company refused to reimburse the sums, despite several formal requests for payment, the Belgian State, representing the Central Office, brought an action before the Tribunal de Première Instance, Verviers, for an order that the company pay to it the sum claimed. For its part, the company counterclaimed against the Belgian State for a provisional principal sum of BFR 150 000 in respect of the MCAs which it considered were due to it for the imports made between 8 February and 17 May 1983.

8 The Tribunal de Première Instance, Verviers, being of the opinion that the outcome of the dispute depended on the interpretation of the Community legislation in question, stayed the proceedings and referred to the Court the following questions for a preliminary ruling:

"1. Does it follow from the rules of Community law, in particular Commission Regulation (EEC) No 495/79 of 14 March 1979, that an economic operator loses irretrievably all entitlement to monetary compensatory amounts if, when completing customs import formalities carried out in a Member State the currency of which has depreciated, in respect of compound feedingstuffs falling within subheadings 23.07 BI a) 1 or 2, 23.07 BI b) 1 or 2 or 23.07 BI c) 1 or 2 of the Common Customs Tariff, he did not properly complete the customs declaration prescribed for the grant of monetary compensatory amounts, having omitted the particulars required by Regulation (EEC) No 495/79, namely the complete composition of the product and the exact content by weight of non-milk constituents broken down by tariff heading?

2. If the reply to the first question is in the negative, does it follow from the rules of Community law that the operator in question may rectify the matter subsequently by supplying the prescribed information to the national authorities which are responsible for calculating and granting the monetary compensatory amounts in question?"

9 Reference is made to the Report for the Hearing for a fuller account of the details of the main proceedings, the procedure and the written observations submitted to the Court, which are mentioned or discussed below only in so far as is necessary for the reasoning of the Court.

10 By those two questions, which must be examined together in view of the close links between them, the national court is, in substance, asking whether the non-declaration, when completing customs import formalities, of the complete composition of products falling within subheadings 23.07 BI a) 1 or 2, 23.07 BI b) 1 or 2, 23.07 BI c) 1 or 2 of the CCT and the exact content by weight of non-milk constituents broken down by tariff heading deprives the economic operator definitively of his entitlement to MCAs or whether, on the other hand, that omission can be rectified subsequently.

11 The Belgian State and the Commission maintain that the economic operator who does not declare, when completing customs formalities, the complete composition of the product and the exact content by weight of non-milk constituents broken down by tariff heading irretrievably loses, thus without the possibility of subsequent rectification, any entitlement to MCAs.

12 They state that the declaration of composition is an essential element of the system established in 1976, and reinforced in 1979, in order to put an end to artificial trade flows brought about by the grant of MCAs for manioc- and flour-of-manioc-based feedingstuffs. According to the Commission, the declaration constitutes an undertaking by the economic operator concerning the composition of the product which, by reason of the likelihood of checks at the time of customs clearance, deters those contemplating fraud. The Belgian State and the Commission also contend that control is extremely difficult, even impossible, after customs clearance and that accordingly rectification ex post facto cannot be considered. The declaration of composition constitutes an essential formal requirement of the system for granting MCAs for the products concerned and non-compliance with that requirement leads, as economic operators are aware, to the irretrievable loss of entitlement to MCAs.

13 In order to reply to the questions referred to the Court, it is appropriate, first of all, to recall the evolution of the Community legislation concerning MCAs for the products in question.

14 Prior to 1976 MCAs granted for forage used in animal feeding falling within subheading 23.07 BI c), that is with a high starch content, were fixed without reference to the constituents from which the starch content in the forage had been obtained.

15 The disparity at that time between the MCAs granted for forage containing starch obtained from products falling within headings 7.06 and 11.06 and, subsequently, within subheading 11.04 C of the CCT, that is to say, essentially, manioc- and flour-of-manioc-based forage, and the MCAs granted for those two constituents, which were used in fact for very similar purposes, had created artificial trade flows in manioc-based forage.

16 In order to put to an end those artificial trade flows, whose sole objective was the payment of higher MCAs, the Commission, by Regulation (EEC) No 1497/76 of 23 June 1976 on the application of accession compensatory amounts and monetary compensatory amounts for certain cereal-based compound feedingstuffs (Official Journal 1976 L 167, p. 27), applied to products falling within subheading 23.07 BI c) 1 or 2 of the CCT, containing more than 50% by weight of products falling within heading 07.06 or 11.06, the same compensatory amounts as those applied to products falling within subheading 07.06 A. To make these provisions more effective, Article 2(1) of that regulation provided that the economic operator was to provide the competent authorities with a declaration of composition.

17 The provisions of that regulation were reproduced in a note to Part 1 of Annex I ("Cereals") to the Commission regulations fixing MCAs and, most recently in note (5) to Part 1 of Annex I to Regulation (EEC) No 1036/78 of 19 May 1978 (Official Journal 1978 L 133, p. 1) as amended, most recently, by Regulation (EEC) No 468/79 of 8 March 1979 (Official Journal 1979 L 61, p. 1).

18 Since those provisions proved to be inadequate, the Commission, by Regulation No 495/79, cited above, amended the wording of that note, in order to withdraw the grant of MCAs from those forages falling within subheadings 23.07 BI a) 1 and 2, 23.07 BI b) 1 and 2, and 23.07 BI c) 1 and 2 of the CCT and containing products falling within heading 7.06 or subheading 11.04 C. According to the recitals in the preamble to that regulation, the system was, as had previously been the case, to be made effective by the declaration of composition made by the economic operator.

19 Article 1(1) of the regulation thus provides, in its second indent, that:

"When completing customs formalities

- ...

- for goods being imported into a Member State the currency of which has depreciated,

- ...

the applicant must state in the declaration provided for this purpose the complete composition of the product and the exact content by weight of non-milk constituents broken down by tariff heading".

20 Finally, for the period in question, those provisions were reproduced in note (9) to Part 1 of Annex I ("Cereals") to Commission Regulations (EEC) No 2901/81 of 7 October 1981 (Official Journal 1981 L 288, p. 1), (EEC) No 1071/82 of 5 May 1982 (Official Journal 1982 L 124, p. 1) and (EEC) No 1235/82 of 19 May 1982 (Official Journal 1982 L 142, p. 1), as amended, fixing the monetary compensatory amounts and certain coefficients and rates required for their application.

21 Those provisions must be considered in conjunction with those of Commission Regulation (EEC) No 1371/81 of 19 May 1981 laying down detailed rules for the administrative application of MCAs (Official Journal 1981 L 138, p. 1), as amended by Commission Regulation No 2898/81 of 7 October 1981 (Official Journal 1981 L 287, p. 1) which, first, provides in Article 6 that: "At the time of the completion of the customs import formalities, the person concerned shall declare on the document prescribed for that purpose all such particulars as are necessary for determining the monetary compensatory amount, in particular: ... (d) in so far as it is necessary for determining the monetary compensatory amount, particulars of the composition of the products", and, secondly, in Article 16(1) that: "the monetary compensatory amount to be granted on import shall be paid only on submission of a copy of the import entry and, where applicable, any relevant attached documents, indicating the particulars referred to in Article 6 and that the products have been imported ...".

22 The Court has already held (see, in particular, the judgment in Case 46/82 Germany v Commission [1983] ECR 3549, paragraph 10) that the proper working of the system of MCAs is based on an effective supervision of transactions. The need for such supervision is even greater when, as in the case in point, the payment of MCAs is subject to particular rules, the aim of which is to do away with artificial trade flows brought about by the grant of MCAs.

23 Under the system established for products falling within subheading 23.07 BI c) 1 or 2 by Regulation No 1497/76, cited above, and subsequently for products falling within subheadings 23.07 BI a) 1 or 2, 23.07 BI b) 1 or 2, and 23.07 BI c) 1 or 2 by Regulation No 495/79, cited above, the declaration of composition is intended, as emerges clearly from the preamble to those regulations, precisely to make such supervision possible.

24 The declaration of composition, the particulars of which are necessary in order to determine entitlement to MCAs, can, however, be effectively verified only at the time of clearance through customs since only a check on the composition of the goods carried out at that time makes it possible to ascertain whether the declaration is correct. Subsequent checks give no assurance that the goods concerned are indeed those for which MCAs have been granted and therefore no assurance that the declaration was truthfully made.

25 The declaration of composition made to the customs authorities of the importing Member State therefore plays an essential role in the mechanism for the grant of MCAs for products falling within subheading 23.07 BI and may not be submitted ex post facto. Accordingly, failure to comply with such a formality cannot be regarded as a mere procedural defect capable of subsequent rectification.

26 It follows from the foregoing that the answers to the questions put to the Court must be that the provisions of Commission Regulation (EEC) No 495/79 of 14 March 1979 on the application of monetary compensatory amounts in respect of certain cereal-based compound feedingstuffs, reproduced in note (9) to Part 1 of Annex I to Commission Regulations (EEC) No 2901/81 of 8 October 1981, No 1071/82 of 5 May 1982 and No 1235/82 of 19 May 1982, as amended, must be interpreted as meaning that an economic operator who, when completing customs formalities on the importation of compound feedingstuffs for animals falling within subheadings 23.07 BI a) 1 and 2, 23.07 BI b) 1 and 2 and 23.07 BI c) 1 and 2 of the Common Customs Tariff into a Member State the currency of which has depreciated, fails to declare the complete composition of the product and the exact content by weight of non-milk constituents broken down by tariff heading, loses all entitlement to payment of monetary compensatory amounts and may not subsequently rectify that failure.

Costs

27

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Tribunal de Première Instance, Verviers, by judgment of 22 October 1990, hereby rules:

The provisions of Commission Regulation (EEC) No 495/79 of 14 March 1979 on the application of monetary compensatory amounts in respect of certain cereal-based compound feedingstuffs, reproduced in note (9) to Part 1 of Annex I to Commission Regulations (EEC) No 2901/81 of 8 October 1981, No 1071/82 of 5 May 1982 and No 1235/82 of 19 May 1982, as amended, must be interpreted as meaning that an economic operator who, when completing customs formalities on the importation of compound feedingstuffs for animals falling within subheadings 23.07 BI a) 1 and 2, 23.07 BI b) 1 and 2 and 23.07 BI c) 1 and 2 of the Common Customs Tariff into a Member State the currency of which has depreciated, fails to declare the complete composition of the product and the exact content by weight of non-milk constituents broken down by tariff heading, loses all entitlement to payment of monetary compensatory amounts and may not subsequently rectify that failure.