N.G.J. Schouten BV v Hoofdproduktschap voor Akkerbouwprodukten (113/78)

II —Written observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice

The appellant in the main action recalls, with regard to the first question, that in its judgment in Case 113/75 (Frecassetti v Amministrazione delle Finanze dello Stato [1976] ECR 983) the Court ruled that the day of importation referred to in particular in Article 15 of Regulation No 120/67 is the day on which the import declaration for the goods is accepted by the customs authorities (paragraph 7 of the decision and paragraph (1) of the operative part) after stating (paragraph 4 of the decision) that this acceptance may not take place until the goods have reached the place prescribed by the customs for the process of customs clearance and until the necessary documents have been submitted.In the present case it is established that the declaration was accepted by the customs authorities on 27 February 1975 and stamped on 28 February 1975, that the Rona Star, which was carrying the goods in question, entered Netherlands territorial waters and subsequently the port zone of Rotterdam on 28 February 1975 and that on the same date the customs authorities boarded the ship and customs declarations were made for the ship and its cargo.In the view of the appellant there exists no Netherlands or Community provision having the force of law which at that time provided that only the place where a ship is berthed can be considered or accepted or designated as the place for the customs declaration with regard to its cargo.In addition it is common ground that it was by reason only of circumstances which cannot be ascribed to the Rona Star that the ship could not berth at buoy No 3 in Europoort on 28 February 1975.In the light of the structure of the Community agricultural rules, the logic of the customs procedure itself, the practical requirements of the customs administration, the interests of an importer of maize from non-member countries, the Netherlands legal provisions, the events relating to the Rona Star which occurred both before and on 27 and 28 February 1975, the reasonableness of the present case and the legal principle of equality of treatment in all the Member States, while in this respect and at the time there existed inequality, and finally the legal principle that any mistakes made by the (customs) administration must not detrimentally affect the person subject to a tax or a levy, the national court could or should have been led, in the view of the appellant, to regard 28 February 1975 as the day of importation.It follows from the above factors at the very least that a teleological and objective and reasonable interpretation of Article 15 of Regulation No 120/67 would in the circumstances of the case lead to the finding, in answer to the first question, that the day of importation within the meaning of Article 15 of Regulation No 120/67 may be before the day on which a ship coming from outside the EEC berths in a Member State.The first question should at least be answered in the negative and the second question, which would then fall to be answered, should be, taking account of the factors set out above, that in a situation such as the present, the day of importation is or may be the day on which the so-called general customs declaration and the import declarations and other import documents are submitted to the customs authorities in respect of the goods to be imported.The Netherlands Government takes the view that with regard to goods transported by ship the final berthing of the vessel is the only time that can objectively be taken as the time of arrival of the goods. It is on that criterion that the national provisions relating to customs are based.In the present case the ship in question was finally berthed only on 1 March 1975 at 1.15 a.m., so that it was only from that time that the customs were able actually to carry out their check on the goods on board. It was therefore necessary to apply automatically the increased levy which entered into force on 1 March 1975 as was correctly stated in the import licence. This may appear to be harsh and even to have an excessive regard for formalities in the present case but, by definition, the application of an objective rule in order to assess whether goods have arrived before or after midnight is of neutral effect, sometimes to the advantage and sometimes to the disadvantage of the person concerned.The Netherlands Government therefore states in reply to the first question that in no case can a day before the date on which the goods arrived be taken as the ‘day of importation’.Turning nevertheless to the second question, the Netherlands Government states that the acceptance by the customs of the import declaration, which is decisive for determining the ‘day of importation’, has permanent legal consequences only after the goods have reached the place of unloading, that is to say the place where the import formalities are completed. The acceptance of the general declaration at an earlier time, which is done by different officials from those responsible for checking, is quite independent of the other operation. Moreover that acceptance serves a completely different purpose namely that of placing the goods under a general customs procedure under which they are brought to the place of unloading so that customs examination of the goods may be carried out. In any event it cannot be concluded from that that the checking has already started or could have already started at that time. Thus the general declaration is irrelevant for the purpose of determining the day of importation.The Netherlands Government observes furthermore that the Community regulations applicable in this regard contain no provision concerning force majeure as regards determination of the day of importation and from that it concludes that the second question should be answered to the effect that circumstances of force majeure of the type found by the national court cannot alter the fundamental principle whereby the day of arrival of the goods is to be regarded as the ‘day of importation’.The Commission is of the opinion with regard to the first question that in order to interpret Article 15 (1) of Regulation No 120/67 it is necessary first to establish that a Community concept is involved which must be interpreted in accordance with Community law and not by reference to national legislation.It emphasizes first the close link, which was moreover confirmed by the Court of Justice in the Frecassetti judgment, between the aforesaid provision and the customs legislation which was harmonized at Community level by the Council Directive of 30 July 1968 (Official Journal, English Special Edition 1968 (II), p. 416) 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. The Commission refers in particular to Article 2 of that directive which provides that:1. All goods entering the customs territory of the Community or coming from a free zone situated in the territory of the Community shall be subject to customs control.2. 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’.It is clear from those provisions that the goods to be imponed must necessarily be physically present in order to be imported into the customs territory of the Community. Customs supervision in accordance with those provisions can be effective only if the customs authorities are in a position to inspect the goods. Similarly the submission of the declaration in order to make goods which are not or have not immediately been placed under a customs procedure subject to the responsibility of the customs presupposes the presence of those goods. It must therefore be concluded that in no case can the ‘day of importation’ be understood as being a day before that when the goods are in fact present.In the Frecassetti judgment the Court of Justice also took as its basis the physical presence of the goods as a condition for the possibility of importing them.If the purpose of Article 15 (1) of the regulation is sought it would appear, on the one hand, that the supervision by the customs authorities of the goods in question and their responsibility in that regard require the physical presence of the goods. On the other hand that provision seeks to ensure the more or less precise determination, on the basis of objective criteria, of the time delimiting the day of importation which is the decisive factor in fixing the levy. The precise fixing of that time and the possibility of determining it in an objective manner are indispensable to ensure adequate legal certainty.The Commission therefore takes the view that the reply should be given to the first question that in no case can the day of importation within the meaning of Article 15 (1) of Regulation No 120/67 be taken to be a day before that on which the products in question are brought to a customs office or to any other place designated by and under the supervision of the customs authorities.The presence of the goods in such a place is intended to enable the customs authorities to carry out certain checks on the products. It is not a question of law but a question of fact. The Commission can accept the point of view advocated by the Netherlands Government whereby, as regards goods which are brought in by ship, the customs authorities must require the ship to be fully berthed. The ship can of course be moored to a dock or to a buoy away from the dock while waiting to obtain a place to unload.The Commission observes that the first part of the second question suggests that in the present case the goods in question were nevertheless subject to a certain customs supervision. While the acceptance by the customs of the general declaration which, according to the Netherlands rules, serves for making a declaration for clearance into circulation, has the effect of placing the goods under a customs procedure, such acceptance by no means implies that the goods have in fact been placed under the supervision of the customs.As regards a possible recourse to the arguments based on force majeure the Commission takes the view that even in the circumstances described by the national court, an external reason which is not attributable to the importer and his agents cannot have the effect of displacing the day of importation. The Community should not have to bear the risk of a possible delay in the arrival of goods for importation. Indeed Community legislation has made provision for a means for importers to obtain financial cover against the risk of belated imponation. Article 15 (2) of Regulation No 120/67 (now Regulation No 2727/75) provides for the possibility of obtaining advance fixing of the levy. In that case the levy applicable is that obtaining on the day when the application is submitted.The Community is therefore not in an identical situation to the one established by the Court in its judgment of 11 July 1978 in Case 6/78 Union Française de Céréales v Hauptzollamt Hamburg-Jonas ([1978] ECR 1675).In conclusion the Commission proposes that the following answers should be given to the questions raised by the College van Beroep voor het Bedrijfsleven :The day of importation within the meaning of Article 15 (1) of Regulation No 120/67 cannot be taken to be a day prior to that on which the goods in question are conveyed to a place designated by the customs authorities. That place must be such that the customs authorities can exercise supervision over the goods in question.Extraneous reasons which cannot be ascribed to the importer cannot justify derogation from the above-mentioned rule.