OPINION OF MR GAND — CASE 12/70 CRAEYNEST v BELGIUM

Mr President,

Members of the Court,

The request for a preliminary ruling with which we have to deal today was submitted by the Belgian Cour de Cassation. Mr Craeynest and Mr Vandewalle, found guilty of complicity in the fraudulent importation from The Netherlands of 12000 kilogrammes of butter, were sentenced by the Belgian criminal courts to pay the State, which was claiming damages in the action, the sum of 973,560 Bfrs by way of the amount of the levies evaded. This figure corresponded to the rate laid down for imports coming from third countries.

Although the trial judge accepted the fact that the butter came from the Netherlands, he emphasized that the import transaction had not been carried out under cover of a certificate DD4, a goods movement certificate adopted in the Commission's decision of 17 July 1962 for entitlement to benefit from the intra-Community levy scheme which is, as we know, more favourable. Before the Cour de Cassation Mr Craeynest and Mr Vandewalle maintained that once it was found that the product came from the Netherlands, no provision existed authorizing the third country levy to be applied to it.

The Cour de Cassation therefore requests your interpretation of the scope of both Regulation No 13/64 of the Council of 5 February 1964 on the progressive establishment of a common organization of the market in milk and milk products, and of Articles 1 and 2 of the Commission's decision of 17 July 1962 adopting certificate DD4. Considered in conjunction, must these provisions be understood to mean that in the absence of such certificate the importer may in no case benefit from the application of the intra-Community levy scheme and from the reduced rate? More precisely, what rule applies to the case of a fraudulent importation of milk products coming from a country of the Community?

In conclusion, the reply to be given to the court making the reference to you should be that Regulation No 13/46 of the Council of 5 February 1964 and the Commission's decision of 17 July 1962 must be interpreted to mean that the Member States are not compelled but merely empowered to refuse to apply the intra-Community levy scheme in the absence of certificate DD4 and may thus, in the case of fraudulent importation, even where it is materially possible to establish by other forms of evidence that products imported from a Member State satisfy the requirements of this scheme, calculate the amount of the levies evaded on the basis of the rates applying to imports from third States.

1 Translated from the French.