Opinion of Mr Advocate General Reischl

Mr President,

Members of the Court,

In the reference for a preliminary ruling with which we have to deal today an interpretation is required of the concept of day of importation contained in Article 15 (1) of Regulation No 120/67 on the common organization of the market in cereals (Official Journal, English Special Edition 1967, p. 33), on which the rate of import levy depends.

In the early part of 1975 the appellant in the main action imported maize and maize pellets from the United States of America into the Netherlands. For this purpose it chartered a ship and gave instructions that it should leave New Orleans at the latest at 6 in the morning of 14 February 1975. The appellant wished to ensure in this way that the importation into Rotterdam would take place at the latest on 28 February 1975, that is to say at a time at which a lower rate of levywould apply than on 1 March 1975. For that reason it was impossible to use the whole capacity of the ship so that the appellant had to pay the shipping line 30000 guilders as dead freight.

However, the transportation of the goods and their arrival in Rotterdam met with various difficulties which frustrated the realization of the original time-table for importation. Thus the departure of the ship was delayed by thick fog. A further delay arose from the fact that the ship approached the South-West Pass, which may only be used in daylight, only towards five in the evening. At Europoon, Rotterdam, it was only possible for the appellant's shipbroker, who had been informed 72 hours in advance of the arrival of the ship, to be allotted Buoy No 3. The departure of another ship berthed there, which had been expected to take place in the morning óf 28 February 1975, was however repeatedly delayed owing to engine trouble. For that reason the ship chartered by the appellant had to lie at anchor outside the harbour breakwater and was able to enter harbour on 28 February only after 9.15 p.m.; it was fully moored at Buoy No 3 by 1.15 a.m. on 1 March.

As regards the import formalities, a corn factor, who was due to carry out the customs formalities on behalf of the appellant, had submitted the import forms on 27 February 1975 and on 28 February had issued the import declaration, which was also stamped for that date. In addition when the ship entered harbour at about 11.30 p.m. on 28 February a customs official came on board. On the same day he accepted the general customs declaration and affixed the words Inspected for entry which, under Netherlands law, places the goods under a general customs procedure although customs examination is not to be regarded as having been effected.

When the import forms were subsequently forwarded to the Hoofdproduktschap voor Akkerbouwprodukten, the respondent in the main action, the customs authorities stated however that 1 March 1975 was the day of importation. Since the Hoofdproduktschap was also of the opinion that both under Netherlands law and Community law 1 March 1975 was to be regarded as the day of importation, it accordingly charged the higher levy valid as from 1 March 1975.

The appellant refers to the fact that the customs declaration on importation and the other import forms had been accepted by the customs on 28 February and that on that day a customs officer accepted the general customs declaration on board the ship chartered by the appellant; it therefore takes the view that the day of importation within the meaning of Article 15 of Regulation No 120/67 can only be 28 February 1975. The appellant therefore claimed from the Hoofdproduktschap an appropriate reduction in the levy and when this had been refused brought an action for the repayment of a portion of the levy paid by it.

The College van Beroep voor het Bedrijsleven, before which matter came, took the view in con. .ering the matter that national law provided no support for the view that only 1 March 1975 could be regarded as the day of importation. With reference to Community law it is not quite clear how in a case such as this one the day of importation is to be defined. By a judgment of 2 May 1978 it therefore stayed the proceedings and asked the Court of Justice to give a preliminary ruling under Article 177 of the EEC Treaty on the following questions:

The position appears to be as follows.

1 Translated from the German.