Hauptzollamt Essen v Interatalanta Handelsgesellschaft mbH & Co. KG (100/79)

II —Summary of written observations submitted to the Court

The Commission observes that the facts with which the case is concerned occurred during the period when the system of monetary compensation was first applied when the Community implementing provisions, at the time contained in Regulation No 1013/71 of the Commission, were still in an incomplete state. To resolve the problem it is necessary in the Commission's view to distinguish two sub-questions, that of determining the date to be taken into account in calculating the monetary compensatory amount and that of determining the date of importation through a private customs warehouse.Regarding the first sub-question the Commission observes that the Community regulations applicable at the time still did not contain any provisions expressly concerning the determination of the date to be taken into account in calculating the monetary compensatory amount. It was only in Regulation No 648/73 (Official Journal L 64, p. 1) that measures were adopted to that effect: Article 7 provides that in trade with third countries provisions concerning the granting of export refunds and the charging of customs duties and levies shall apply to monetary compensatory amounts; for trade between Member States Article 8 states inter alia that the amount to be levied shall be that applicable on the day of the importation (Article 8 (1)) and that for the purpose of determining the compensatory amount to be levied the “date of importation” shall be the date used for determining customs duties and levies (Article 8 (3)). In the Commission's view those provisions merely enact and clarify certain principles which were already applicable before the adoption of that regulation.To determine the relevant date for the calculation of the monetary compensar tory amounts, which are continually varying, is of fundamental importance for the functioning of the system. If it were left to the Member States to fix the relevant reference date, which might for example be the day the contract is made and not the day of importation, serious distortions might result. In this case the position would be the same if it were open to Member States to specify as the reference date either that of placing in the warehouse or that of removal therefrom for in extreme cases those dates might be separated by as much as five years.The Commission therefore thinks that it is normal to take, as for levies, the date of importation, because the general economic circumstances are comparable and because levies or refunds and monetary compensatory amounts are somewhat interdependent even according to the system in force before 4 June 1973. Variations of the parity (or the central rate) of the dollar had repercussions on the amount of monetary compensation, but at the same time it also gave rise to variations (in the opposite direction) in the levies (or refunds) calculated on the basis of the world market prices expressed in dollars.The case-law of the court is to this effect. Thus in the Judgment in Case 5/73 Balkan [1973] ECR 1091 the Court found that the calculation of the monetary compensatory amount was correct and thus approved the taking into account of the date of importation. The judgment in Case 94/77 Zerbone [1978] ECR 99 is even more significant (cf. paragraph 18 where it is stated : “The practice followed in all Member States of taking the day of importation or exportation as the reference date must be regarded as lawful”). Considered in isolation that wording, it is true, means only that the practice followed by the Member States, in the particular case Italy, is not contrary to Community law, but does not necessarily mean that Community law requires that practice.Nevertheless if that wording is related to other observations of the Court on the question the conclusion must be drawn that already at the time in question Community law contained the principle that in determining monetary compensatory amounts it was right as regards imports to refer to the date of importation.Regarding the second sub-question the Commission points out that the Council Directive No 69/74/EEC of 4 March 1969 on the harmonization of provisions laid down by law, regulation or administrative action relating to customs warehousing procedure (Official Journal, English Special Edition 1969 (I), p. 82) provides in Article 10 (1) that:“... when goods deposited in warehouses are cleared for home use the customs duties, charges having equivalent effect and agricultural levies chargeable on importation shall be collected on the basis of the rates or amount applicable on the date of removal from the warehouse and according to the nature of the goods, the value for customs purposes and the quantity, as ascertained or accepted for that purpose by the customs authorities.”That provision is based on the idea that it is when the amount of the customs duties and levies depends on the date at which the products in question ultimately enter the domestic market of the Community and come into competition with domestic products that their purpose is best achieved. That also applies to the charging of monetary compensatory amounts.The effect of the customs warehousing procedure is precisely that no monetary compensatory amount is levied during the period of warehousing; on their removal from the warehouse the goods are to be put into free circulation or made subject to another customs procedure or they may be re-exported without any charge. In view of that uncertainty as to the destination of the goods it is not correct to say as the Bundesfinanzhof does that the goods “are already participating in trade in the Community” by the simple fact of crossing the frontier.Generally speaking there is no fundamental difference in relation to the law on levies. In both cases it is a question of protecting a given price level as against imported goods.Since Regulation No 648/73 was adopted the problem is expressly regulated. Since Article 7 of that regulation refers as a whole to the customs provisions in the case of the application of the monetary compensatory amounts in trade with nonmember States, there is no longer any doubt that Article 10 of Directive No 69/74/EEC also applies to monetary compensatory amounts. Article 8 (3) of Regulation (No 648/73 leads to the same conclusion as regards trade within the Community. The Commission is of the view that on this particular issue also all that has been done has been to enact as express rules of law what was already applicable before the regulation in question was adopted, in other words the provisions are solely declaratory.The Commission observes that since the directive expressly refers to all private customs warehouses the above conclusion also applies to trade in goods which pass through a private customs warehouse.The question as put by the Bundesfinanzhof does not properly get to the root of the problem. Not only is the national legislature not prevented from specifying the day of removal from the warehouse as the relevant date for determining the rate of the monetary compensatory amounts but on the contrary Community law requires it so to do.In conclusion the Commission proposes that the Court should give the following answer:“Where goods were imported from a nonmember State into the Community, placed in a private customs warehouse in the Federal Republic during August and September 1971 and removed therefrom between September and November 1971 and put into free circulation, the relevant date for application of the monetary compensatory amounts under Regulation (EEC) No 974/71 is the day of removal from the warehouse.”The Commission, represented by N. Koch, acting as Agent, presented oral argument at the hearing on 29 November 1979.The Advocate General delivered his opinion on 24 January 1980.