61978J0113

AGRICULTURE - COMMON ORGANIZATION OF THE MARKET - CEREALS - LEVY APPLICABLE ON THE DAY OF IMPORTATION - CONCEPT OF ' ' DAY OF IMPORTATION ' ' - INTERPRETATION - OBJECTIVE CRITERIA - EVENTS NOT ATTRIBUTABLE TO IMPORTER - EFFECT - NONE

THE ' ' DAY OF IMPORTATION ' ' WITHIN THE MEANING OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 CANNOT BE EARLIER THAN THAT ON WHICH THE GOODS WERE BROUGHT TO A PLACE DESIGNATED BY THE COMPETENT NATIONAL AUTHORITIES TO ENABLE THEM TO MAKE A REAL AND EFFECTIVE CUSTOMS INSPECTION .

A DELAY IN THE DISPATCH OF GOODS DUE TO EVENTS NOT ATTRIBUTABLE TO THE IMPORTER CANNOT AFFECT THE INTERPRETATION TO BE GIVEN TO ' ' DAY OF IMPORTATION ' ' WITHIN THE MEANING OF THE ABOVE-MENTIONED PROVISION .

IN CASE 113/78

REFERENCE TO THE COURT PURSUANT TO ARTICLE 177 OF THE EEC TREATY BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN ( AN ADMINISTRATIVE COURT OF LAST INSTANCE IN MATTERS OF TRADE AND INDUSTRY ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

N . G . J . SCHOUTEN B.V ., GIESSEN ,

AND

HOOFDPRODUKTSCHAP VOOR AKKERBOUWPRODUKTEN ( CENTRAL BOARD FOR AGRICULTURAL PRODUCTS ),

ON THE INTERPRETATION OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 33 )

1BY DECISION OF 2 MAY 1978 THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN REFERRED TO THE COURT IN PURSUANCE OF ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS RELATING TO THE INTERPRETATION OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 ON THE COMMON ORGANIZATION OF THE MARKET IN CEREALS ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1967 , P . 33 ) UNDER WHICH THE IMPORT LEVY TO BE CHARGED ' ' SHALL BE THAT APPLICABLE ON THE DAY OF IMPORTATION ' ' .

2THESE QUESTIONS WERE RAISED IN THE CONTEXT OF AN ACTION RELATING TO THE FIXING OF THE RATE OF LEVY CHARGED ON A CONSIGNMENT OF MAIZE AND A CONSIGNMENT OF GLUTEN FEED PELLETS FROM THE UNITED STATES OF AMERICA IMPORTED INTO THE PORT OF ROTTERDAM IN A SHIP CHARTERED BY THE APPLICANT IN THE MAIN ACTION .

3IT APPEARS FROM THE FILE THAT THIS SHIP , FOR WHICH A BERTH AT BUOY NO 3 AT EUROPOORT , ROTTERDAM , HAD BEEN RESERVED , WAS IN THE HARBOUR DISTRICT OF ROTTERDAM ON 28 FEBRUARY 1975 AWAITING THE DEPARTURE , WHICH HAD BEEN DEFERRED ON SEVERAL OCCASIONS , OF ANOTHER SHIP FROM THE BERTH WHICH HAD BEEN RESERVED .

ALTHOUGH THE VESSEL CHARTERED WAS ABLE TO ENTER THE PORT OF ROTTERDAM BEFORE MIDNIGHT ON 28 FEBRUARY IT WAS NOT ENTIRELY BERTHED AT BUOY NO 3 IN EUROPOORT UNTIL 1 MARCH 1975 AT ABOUT 1.15 A.M .

4HOWEVER , IT IS ESTABLISHED THAT DURING THE NIGHT OF 28 FEBRUARY AN OFFICER OF CUSTOMS HAD COME ABOARD THE SHIP AND HAD DRAWN UP BEFORE MIDNIGHT A ' ' GENERAL DECLARATION ' ' OF IMPORT BY AFFIXING TO THE DOCUMENT THE WORDS ' ' INSPECTED FOR ENTRY ' ' WITH A DATE STAMP FOR 28 FEBRUARY 1975 AFTER CHECKING THAT THE NATURE OF THE GOODS PRESENTED FOR THE PURPOSES OF CUSTOMS DECLARATION AS INDICATED ON THE LIST OF GOODS SHIPPED , WAS IN CONFORMITY WITH THE INFORMATION ON THE BILL OF LADING WHICH WAS ON BOARD THE VESSEL .

ACCORDING TO THE EXPLANATIONS OF THE NETHERLANDS GOVERNMENT , WHICH ARE NOT CHALLENGED , THIS ' ' GENERAL DECLARATION ' ' HAS THE PURPOSE ONLY OF PLACING THE GOODS UNDER A GENERAL CUSTOMS PROCEDURE UNDER WHICH THEY ARE BROUGHT TO THE PLACE WHERE THE ACTUAL CUSTOMS EXAMINATION MAY BE CARRIED OUT .

5THE ROTTERDAM CUSTOMS AUTHORITIES , HAVING REGARD TO THE FACT THAT THE VESSEL HAD NOT BEEN ENTIRELY MOORED UNTIL 1 MARCH 1975 , INFORMED THE APPELLANT THAT THAT WAS THE DATE WHICH MUST BE REGARDED AS THE DAY OF IMPORTATION .

THE HOOFDPRODUKTSCHAP VOOR ALLERBOUWPRODUKTEN , THE RESPONDENT IN THE MAIN ACTION , IN ITS TURN ACCEPTED THE DATE FIXED BY THE CUSTOMS AUTHORITIES AND SENT TO THE APPELLANT ON 1 MAY 1975 A REVISED ASSESSMENT IMPOSING ON IT , PURSUANT TO REGULATION NO 120/67 , A LEVY CALCULATED ON THE BASIS ON THE THRESHOLD PRICE RULING ON 1 MARCH 1975 , WHICH WAS HFL 3.79 PER KG HIGHER THAN THE PRICE RULING ON 28 FEBRUARY 1975 .

6THE NATIONAL COURT , TO WHICH THE APPELLANT APPEALED AGAINST A DECISION BY THE RESPONDENT REJECTING ITS REQUEST THAT 28 FEBRUARY 1975 SHOULD BE CONSIDERED FOR THE PURPOSES OF THE LEVY AS BEING THE ' ' DAY OF IMPORTATION ' ' , WITHIN THE MEANING OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 , REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING THE FOLLOWING QUESTIONS :

' ' 1 . DOES IT FOLLOW FROM A PROPER INTERPRETATION OF ARTICLE 15 OF REGULATION NO 120/67 THAT IN NO CIRCUMSTANCES CAN A DAY BEFORE THE DATE ON WHICH THE PRODUCTS IN QUESTION ARE BROUGHT TO A PLACE WHICH IS ACCEPTED BY THE CUSTOMS DEPARTMENT CHARGED WITH RECEIVING THE IMPORT DECLARATIONS AND THE OTHER IMPORT DOCUMENTS BE REGARDED AS THE ' DAY OF IMPORTATION ' WITHIN THE MEANING OF ARTICLE 15 ( 1)?

2 . IF THAT QUESTION MUST BE ANSWERED IN THE NEGATIVE DOES IT FOLLOW FROM A PROPER INTERPRETATION OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 THAT THE ' DAY OF IMPORTATION ' IS TO BE OR CAN BE TAKEN TO BE THE DAY ON WHICH , IN RESPECT OF GOODS TRANSPORTED BY SHIP , BOTH A GENERAL DECLARATION IS ISSUED BY THE CUSTOMS BY VIRTUE OF WHICH THE PRODUCTS ARE CLASSIFIED AS GOODS WHICH HAVE ENTERED THE COUNTRY AND ARE SUBJECT TO CUSTOMS SUPERVISION AND ON WHICH THE CUSTOMS DECLARATIONS AND OTHER IMPORT DOCUMENTS HAVE ALSO BEEN ACCEPTED BY THE CUSTOMS IN A SITUATION IN WHICH THE PRODUCTS WERE NOT BROUGHT TO THE PLACE REFERRED TO IN QUESTION 1 EXCLUSIVELY AND SOLELY BECAUSE THAT PLACE WAS NOT AVAILABLE FOR EXTRANEOUS REASONS WHICH CANNOT BE ASCRIBED TO THE IMPORTER OR ITS AGENTS?

' '

7AS THE COURT HAS STATED IN ITS JUDGMENT OF 15 JUNE 1976 IN CASE 113/75 ( FRECASSETTI V AMMINISTRAZIONE DELLE FINANZE DELLO STATO , ( 1976 ) ECR 983 ) THE AIM OF THE AGRICULTURAL LEVY IS TO COMPENSATE FOR THE DIFFERENCE BETWEEN THE PRICE ON THE WORLD MARKET AND THE HIGHER COMMUNITY PRICE .

THE LEVY IS PRIMARILY INTENDED TO PROTECT AND STABILIZE THE COMMUNITY MARKET , IN PARTICULAR BY PREVENTING PRICE FLUCTUATIONS ON THE WORLD MARKET FROM AFFECTING PRICES WITHIN THE COMMUNITY .

HENCE , THE AUTHORITY RESPONSIBLE FOR THE APPLICATION OF THE LEVIES , WHETHER THIS BE THE CUSTOMS ADMINISTRATION OR THE COMPETENT INTERVENTION BODY , CANNOT ADVANCE OR DELAY THE DETERMINATION OF THE RATE OF LEVY BEYOND THE DATE PRESCRIBED BY THE COMMUNITY PROVISIONS .

8IN THE WORDS OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 , THE IMPORT LEVY TO BE CHARGED SHALL BE ' ' THAT APPLICABLE ON THE DAY OF IMPORTATION ' ' .

THAT DATE IS THE DATE ON WHICH THE IMPORT DECLARATION FOR THE GOODS IS ACCEPTED BY THE CUSTOMS AUTHORITIES .

HOWEVER , THAT ACCEPTANCE CANNOT TAKE PLACE AS LONG AS THE GOODS , EVEN IF THEY HAVE ALREADY BEEN SUBJECTED TO A GENERAL CUSTOMS PROCEDURE , HAVE NOT ARRIVED AT THE PLACE PRESCRIBED BY THE CUSTOMS FOR THE PROCESS OF CHECKING AND CLEARANCE .

9IT WAS IN THIS SENSE THAT ARTICLE 2 OF COUNCIL DIRECTIVE NO 68/312/EEC OF 30 JULY 1968 ON HARMONIZATION OF THE PROVISIONS LAID DOWN BY LAW , REGULATION OR ADMINISTRATIVE ACTION RELATING TO : 1 . CUSTOMS TREATMENT OF GOODS ENTERING THE CUSTOMS TERRITORY OF THE COMMUNITY ; 2 . TEMPORARY STORAGE OF SUCH GOODS , ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1968 ( II ) P . 416 ) PRESCRIBED IN PARAGRAPH ( 1 ) THAT ' ' ALL GOODS ENTERING THE CUSTOMS TERRITORY OF THE COMMUNITY . . . SHALL BE SUBJECT TO CUSTOMS CONTROL ' ' , AND IN PARAGRAPH ( 2 ) THAT ' ' THEY SHALL IMMEDIATELY BE CONVEYED , BY THE ROUTE DESIGNATED BY THE COMPETENT NATIONAL AUTHORITIES , TO A CUSTOMS OFFICE OR OTHER PLACE DESIGNATED BY THOSE AUTHORITIES AND UNDER THE SUPERVISION OF THE CUSTOMS AUTHORITIES ' ' .

10THUS THE ANSWER TO BE GIVEN TO THE FIRST QUESTION MUST BE THAT THE ' ' DAY OF IMPORTATION ' ' WITHIN THE MEANING OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 CANNOT BE EARLIER THAN THAT ON WHICH THE GOODS WERE BROUGHT TO A PLACE DESIGNATED BY THE COMPETENT NATIONAL AUTHORITIES TO ENABLE THEM TO MAKE A REAL AND EFFECTIVE CUSTOMS INSPECTION .

11THE SECOND QUESTION ASKS WHETHER ' ' THE DAY OF IMPORTATION ' ' WITHIN THE MEANING OF THE ABOVE-MENTIONED ARTICLE MAY BE INTERPRETED AS BEING THE DATE OF THE GENERAL DECLARATION IF THE GOODS , FOR REASONS WHICH CANNOT BE ASCRIBED TO THE IMPORTER OR ITS AGENTS , COULD NOT BE BROUGHT TO THE PLACE PRESCRIBED BY THE CUSTOMS AUTHORITIES .

12THE INTERPRETATION GIVEN TO THE ' ' DAY OF IMPORTATION ' ' IN THE ANSWER TO THE FIRST QUESTION IS BASED ON OBJECTIVE CRITERIA .

EVENTS SUCH AS THOSE WHICH OCCURRED IN THIS CASE , WHETHER OR NOT INDEPENDENT OF THE WILL OF THE IMPORTER , CANNOT AFFECT THE EXISTENCE OF OBJECTIVELY DETERMINED FACTS .

13HENCE THE ANSWER TO THE SECOND QUESTION MUST BE THAT EVENTS NOT ATTRIBUTABLE TO THE IMPORTER CANNOT AFFECT THE INTERPRETATION TO BE GIVEN TO ' ' DAY OF IMPORTATION ' ' WITHIN THE MEANING OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 .

COSTS

14THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , 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 NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT ,

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN BY DECISION OF 2 MAY 1978 , HEREBY RULES :

1 . THE ' ' DAY OF IMPORTATION ' ' WITHIN THE MEANING OF ARTICLE 15 ( 1 ) OF REGULATION NO 120/67 OF THE COUNCIL OF 13 JUNE 1967 CANNOT BE EARLIER THAN THAT ON WHICH THE GOODS WERE BROUGHT TO A PLACE DESIGNATED BY THE COMPETENT NATIONAL AUTHORITIES TO ENABLE THEM TO MAKE A REAL AND EFFECTIVE CUSTOMS INSPECTION OF THE GOODS .

2 . EVENTS NOT ATTRIBUTABLE TO THE IMPORTER CANNOT AFFECT THE INTERPRETATION TO BE GIVEN TO ' ' DAY OF IMPORTATION ' ' WITHIN THE MEANING OF THAT PROVISION .