C — · Giordano Frecassetti v Amministrazione delle finanze dello Stato (113/75)

C —1. The Government of the Republic of Italy believes that while at first it may appear that the judgment in Case 35/71 is also capable of resolving the problems raised by the present case, in particular as it provides that ‘the rate of levy applicable must therefore be that in force on the date on which the goods are irrevocably put into free circulation’ the argument in that case turned on a quite special situation, that of a system of customs warehouses.The question to be resolved is that of importation which is subject to successive controls, that is to say, where the importer obtains authorization to clear goods through customs not at one single time but in instalments.Even in the case of clearance through customs by successive clearance certificates, the levy is applicable according to the rate in force on the date of acceptance of the final customs import declaration which establishes that the goods are intended for consumption in the Community territory. On the basis of the identical criterion applied to customs duties, the importer is nevertheless entitled to ask, in respect of each quantity examined and cleared through customs, for the application of the levy, which may be lower, in force on the date on which each customs clearance certificate is used.Even ignoring the convergent factors which may be derived from an analytical examination of the Community rules, it appears that it must be concluded that ‘day of importation’ must in principle be interpreted as being the day when the customs authorities accept the document whereby the final importation is declared. The customs rules of the different Member States in fact follow this interpretation which is by implication confirmed by the judgment of 15 May 1974 in Case 186/73 and that of 28 May 1974 in Case 3/74 (Einfuhr- und Vorratsstelle für Getreide und Futtermittel v Pfützenreuter [1974] ECR 589). It appears therefore from the identical criterion employed in the case of customs duties that the levy in force on the day that the customs authorities accept the final import declaration must be regarded as being applicable to products subject to the levy rules.2. There further appear to be no objections on principle to the possibility of derogation, by virtue of which the importer may ask for the application of the most favourable rate in force on the day of customs clearance.Even if their objectives are not wholly the same levies and customs duties have an analogous purpose and they constitute the instruments for a criterion of uniform taxation. This is evident both from Community rules themselves and in particular from the agreements concluded with associated countries and from the Common Customs Tariff contained in the Annex to Regulation No 950/68/EEC of 28 June 1968 (OJ English Special Edition 1968 (1) p. 275) from Regulation (EEC) No 3000 of 17 November 1975 (OJ L 304 of 24. 11. 1975) which lay down uniform preliminary provisions and which also expressly refer to the levy rules and to the abovementioned draft directive of 21 December 1973 in which customs duties, charges having an equivalent effect and levies are taken into account simultaneously and in a uniform manner in a single provision.Apart from the fact that they emphasize the need to refer to the date of acceptance of the final import declaration in order to determine the levy applicable, these factors lead to the adoption, in the case of levies as well, of the criterion whereby the importer may ask for the application of the rate of duty in force on the date of the actual customs clearance of the imported goods according to the rules and procedures which at the present moment still differ in the various Member States, that is to say, when, after the customs examination and the payments of the duties, he may actually dispose of the goods (whether or not they are in fact removed from the customs premises).This possibility should be accepted in particular when customs clearance is effected by successive clearance certificates, especially in view of the fact that it fulfils the need of guaranteeing the genuinely competitive nature of the products in question on the internal market, which conforms precisely with the actual purpose of the levy rules. At the same time the application of the levy in force on the date on which the final import declaration is accepted, which may possibly be lower than the rate applicable on the date of customs clearance, is justified in view of the commercial forward planning of the trader concerned and the influence which has in fact already been exercised on the internal market by the products which have been the subject of a final import declaration.3. On the other hand there must in any case be excluded the possibility of taking account of the levies in force during the period between the date of acceptance of the final import declaration and the date of the clearance of the goods through customs. Otherwise each trader concerned could choose the most favourable levy and thus evade taxation.4. This answer renders superfluous the request for the interpretation of the recommendation of 25 May 1962 which must be regarded as unacceptable and therefore inadmissible in view of the fact that this kind of act has no binding force. The fact that recourse to Article 177 is intended to provide the solution to cases before the courts clearly shows the scope which should be given to the term ‘acts’ in paragraph (b) of that provision. It cannot be argued that the fact that the question has been ruled inadmissible requires an assessment of the importance of the question as the fact that it is impossible to interpret recommendations excludes the very need to rule on this particular point. Nor can the admissibility of this question be supported by the help which a national court might obtain from an interpretation of the recommendation since in any case the national court would have to apply the rule of national law in accordance with an interpretation which only that court has jurisdiction to give, whether or not it is in accordance with an exact interpretation of the recommendation.The plaintiff in the main action, represented by Nicola Catalano, Advocate of the Rome Bar, the Italian Government, represented by Arturo Marzano, Avvocato dello Stato, and the Commission of the European Communities, represented by its legal adviser, Giuliano Marenco, acting as Agent, presented oral argument at the hearing on 8 April 1976.The Advocate-General delivered his opinion at the hearing on 26 May 1976.