61970J0012

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AGRICULTURE - COMMON AGRICULTURAL POLICY - COMMON ORGANIZATION OF THE MARKET - MILK AND MILK PRODUCTS - IMPORTATION FROM A MEMBER STATE - BENEFIT UNDER THE COMMUNITY SCHEME - CERTIFICATE D D4 REQUIRED

( REGULATION NO 13/64/EEC OF THE COUNCIL OF 5 FEBRUARY 1964 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OJ NO 34 OF 27 . 2 . 1964, P . 549 ); DECISION OF THE COMMISSION OF 17 JULY 1962 SETTING UP SPECIAL METHODS OF ADMINISTRATIVE CO-OPERATION FOR APPLYING THE INTRA-COMMUNITY LEVIES SET UP UNDER THE COMMON AGRICULTURAL POLICY ( OJ NO 76 OF 24 . 8 . 1962, P . 2140 ))

SUBJECT TO THE EXCEPTIONS PROVIDED FOR THEREIN, REGULATION NO 13/64/EEC AND THE COMMISSION' S DECISION OF 17 JULY 1962 MUST BE " INTERPRETED TO MEAN THAT IMPORTERS OF GOODS FROM ANOTHER MEMBER STATE MAY ONLY BENEFIT FROM THE INTRA-COMMUNITY SCHEME IN RESPECT OF GOODS COVERED BY CERTIFICATE D D4 . THIS INTERPRETATION MUST ALSO BE APPLIED WHERE IT IS NECESSARY TO ESTABLISH THE AMOUNT OF LEVIES EVADED AS A RESULT OF FRAUDULENT IMPORTATION, EVEN THOUGH THE COMMUNITY ORIGIN OF THE PRODUCT IN QUESTION COULD BE ESTABLISHED BY MEANS OTHER THAN THE SAID CERTIFICATE .

IN CASE 12-70

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE BELGIAN COUR DE CASSATION ( SECOND CHAMBER ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

( 1 ) PAUL CRAEYNEST,

( 2 ) MICHEL VANDEWALLE

AND

( 1 ) BELGIAN STATE, MINISTER FOR FINANCE, CUSTOMS AND EXCISE,

( 2 ) BELGIAN STATE, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS

ON THE INTERPRETATION OF ARTICLES 1 TO 12 OF REGULATION NO 13/64/EEC OF THE COUNCIL OF 5 FEBRUARY 1964 ON THE PROGRESSIVE ESTABLISHMENT OF A COMMON ORGANIZATION OF THE MARKET IN MILK AND MILK PRODUCTS ( OJ NO 34 OF 27 . 2 . 1964, P . 549 ), ARTICLES 1 AND 2 OF THE COMMISSION' S DECISION OF 5 DECEMBER 1960 RELATING TO METHODS OF ADMINISTRATIVE CO-OPERATION FOR THE PURPOSE OF APPLYING ARTICLE 9 ( 2 ) OF THE EEC TREATY ( OJ NO 4 OF 20 . 1 . 1961, P . 29 ) AND ARTICLES 1 AND 2 OF THE COMMISSION' S DECISION OF 17 JULY 1962 SETTING UP SPECIAL METHODS OF ADMINISTRATIVE COOPERATION FOR APPLYING THE INTRA-COMMUNITY LEVIES SET UP UNDER THE COMMON AGRICULTURAL POLICY ( OJ NO 76 OF 24 . 8 . 1962, P . 2140 ).

1 BY A JUDGMENT OF 9 MARCH 1970, RECEIVED AT THE COURT REGISTRY ON 27 MARCH 1970, THE BELGIAN COUR DE CASSATION HAS REQUESTED THE COURT UNDER ARTICLE 177 OF THE TREATY ESTABLISHING THE EEC TO GIVE A PRELIMINARY RULING ON THE INTERPRETATION OF REGULATION NO 13/64/EEC OF THE COUNCIL OF 5 FEBRUARY 1964 ( OJ NO 34 OF 27 . 2 . 1964, P . 549 ), AND OF THE COMMISSION' S DECISION OF 5 DECEMBER 1960 ( OJ NO 4 OF 20 . 1 . 1961, P . 29 ) AND 17 JULY 1962 ( OJ NO 76 OF 24 . 8 . 1962, P . 2140 ).

2 IN THAT JUDGMENT THE COURT IS REQUESTED TO STATE WHETHER ARTICLES 1 TO 12 OF REGULATION NO 13/64/EEC, IN CONJUNCTION WITH ARTICLES 1 AND 2 OF THE SAID TWO DECISIONS, " MUST BE INTERPRETED TO MEAN THAT, IN THE ABSENCE OF CERTIFICATE DD4, AN IMPORTER MAY IN NO CASE BENEFIT FROM THE APPLICATION OF THE SCHEME FOR INTRA-COMMUNITY AGRICULTURAL LEVIES NOR, THEREFORE, FROM THE REDUCED RATE PROVIDED FOR INTRA-COMMUNITY TRADE, WITH THE PARTICULAR CONSEQUENCE THAT IN THE CASE OF A FRAUDULENT IMPORT TRANSACTION, EVEN IF THE GOODS IMPORTED FROM A COUNTRY OF THE COMMUNITY THE AMOUNT OF THE LEVIES EVADED IS CALCULATED ON THE BASIS OF THE RATES APPLYING TO IMPORTS OF BUTTER FROM THIRD COUNTRIES, AS FIXED FOR THE PERIOD IN QUESTION IN THE SCALES DRAWN UP BY THE COMPETENT AUTHORITIES IN THIS RESPECT ".

3 REGULATION NO 13/64/EEC PROVIDES, AS REGARDS IMPORTS OF MILK AND MILK PRODUCTS INTO A MEMBER STATE, FOR THE IMPOSITION OF LEVIES WHOSE AMOUNT VARIES ACCORDING TO WHETHER SUCH IMPORTS CONSTITUTE INTRA-COMMUNITY TRADE OR RATHER TRADE BETWEEN A MEMBER STATE AND A THIRD COUNTRY .

4 AS THIS REGULATION DID NOT SPECIFY THE DOCUMENTS BY WHICH COMMUNITY ORIGIN WAS TO BE ESTABLISHED IT IS NECESSARY TO REFER TO THE COMMISSION' S DECISION OF 17 JULY 1962, " SETTING UP SPECIAL METHODS OF ADMINISTRATIVE COOPERATION FOR APPLYING THE INTRA-COMMUNITY LEVIES SET UP UNDER THE COMMON AGRICULTURAL POLICY ", WHICH REPLACES TO THIS EXTENT THE COMMISSION' S DECISION OF 5 DECEMBER 1960 WHICH IS HENCEFORWARD INAPPLICABLE TO PRODUCTS WHICH ARE SUBJECT TO THOSE LEVIES .

5 LIKE THE EARLIER MEASURES ADOPTED BY THE COMMISSION UNDER ARTICLE 10 ( 2 ) OF THE TREATY, THE PURPOSE OF THE DECISION OF 17 JULY 1962 INSTITUTING THE MOVEMENT CERTIFICATE DD4 WAS TO CONTRIBUTE TO THE ELIMINATION OF ALL BARRIERS TO TRADE BETWEEN MEMBER STATES BY HARMONIZING THE FORMALITIES TO WHICH TRADE WITHIN THE COMMUNITY IS SUBJECT .

6 THE ADOPTION OF THIS CERTIFICATE AROSE OUT OF METHODS OF ADMINISTRATIVE COOPERATION WHICH WERE ALREADY IN FORCE WHOSE PURPOSE, ACCORDING TO THE THIRD PARAGRAPH OF THE PREAMBLE TO THE DECISION OF 17 JULY 1962, WAS TO ENSURE THAT GOODS ORIGINATING IN THE MEMBER STATES SHOULD BENEFIT FROM MEASURES LIBERALIZING INTRA-COMMUNITY TRADE " UNDER EXACTLY THE SAME TERMS ".

7 IT IS THEREFORE NECESSARY FOR THE USE OF CERTIFICATE DD4 AS A STANDARD MEANS OF PROOF TO BE ABSOLUTELY IDENTICAL IN ALL THE MEMBER STATES .

8 THIS REQUIREMENT WOULD BE INVALIDATED IF NATIONAL ADMINISTRATIONS WERE ABLE TO EMPLOY OTHER MEANS OF PROOF, APART FROM THE PROOF OF ORIGIN WHICH IS ESTABLISHED IN THE FORM OF THE SAID CERTIFICATE .

9 ACCORDING TO ITS PREAMBLE THE PURPOSE OF THE DECISION OF 17 JULY 1962 IS TO " EXCLUDE GOODS SUBJECT TO THE AGRICULTURAL LEVIES FROM THE SCOPE OF THE COMMISSION' S DECISION OF 5 DECEMBER 1960 " - WHICH HAD CREATED THE MOVEMENT CERTIFICATES DD1 AND DD3 - " AND TO ESTABLISH FOR THEM A SPECIAL FORM ... FOR THE PURPOSE OF PROVING THAT THEY FULFIL THE CONDITIONS GOVERNING THEIR ADMISSION TO THE SYSTEM OF INTRA-COMMUNITY LEVIES ".

10 CONSEQUENTLY, IN ARTICLE 1 THE DECISION PRESCRIBES " FOR THE PURPOSE OF APPLYING THE SYSTEM OF INTRA-COMMUNITY AGRICULTURAL LEVIES IN THE IMPORTING MEMBER STATE, A MOVEMENT CERTIFICATE FORM DD4 ", WHICH, UNDER ARTICLE 4 OF THE SAME DECISION " MUST BE PRODUCED ... AT THE CUSTOMS OFFICE OF THE IMPORTING MEMBER STATE WHERE THE GOODS ARE PRESENTED ", WITHIN A PERIOD FIXED BY THE SAID ARTICLE 4 .

11 BY SPECIFICALLY DEFINING THOSE IMPORTS - OF A NON-COMMERCIAL NATURE - WHICH, AS AN EXCEPTION, DO NOT REQUIRE CERTIFICATE DD4, ARTICLE 7 OF THE DECISIONS CONFIRMS THE MANDATORY NATURE OF THE CERTIFICATE .

12 IT APPEARS THEREFORE THAT IMPORTERS OF GOODS FROM ANOTHER MEMBER STATE MAY ONLY BENEFIT FROM THE INTRA-COMMUNITY SCHEME IN RESPECT OF GOODS COVERED BY THIS CERTIFICATE .

13 IN THE ABSENCE OF PROVISIONS TO THE CONTRARY THESE CONSIDERATIONS REMAIN VALID WHERE IT IS NECESSARY TO ESTABLISH THE AMOUNT OF LEVIES EVADED AS A RESULT OF FRAUDULENT IMPORTATION, EVEN THOUGH THE COMMUNITY ORIGIN OF THE PRODUCT COULD BE ESTABLISHED BY MEANS OTHER THAN THE SAID CERTIFICATE .

14 - 15 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF BELGIUM AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE AND 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 BELGIAN COUR DE CASSATION THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE BELGIAN COUR DE CASSATION BY JUDGMENT OF THAT COURT DATED 9 MARCH 1970, HEREBY RULES :

1 . SUBJECT TO THE EXCEPTIONS PROVIDED FOR THEREIN, REGULATION NO 13/64/EEC AND THE COMMISSION' S DECISION OF 17 JULY 1962 MUST BE INTERPRETED TO MEAN THAT IMPORTERS OF GOODS FROM ANOTHER MEMBER STATE MAY ONLY BENEFIT FROM THE INTRA-COMMUNITY SCHEME IN RESPECT OF GOODS COVERED BY CERTIFICATE DD4;

2 . THIS INTERPRETATION MUST ALSO BE APPLIED WHERE IT IS NECESSARY TO ESTABLISH THE AMOUNT OF LEVIES EVADED AS A RESULT OF FRAUDULENT IMPORTATION, EVEN THOUGH THE COMMUNITY ORIGIN OF THE PRODUCT IN QUESTION COULD BE ESTABLISHED BY MEANS OTHER THAN THE SAID CERTIFICATE .