Opinion of Mr Advocate General Lenz

Mr President,

Members of the Court,

The reference for a preliminary ruling on which I shall deliver my Opinion today concerns the relationship between the Benelux and Community transit rules. The facts of the case may be summarized as follows : with the external Community transit procedure then laid down in Regulation (EEC) No 542/69 of the Council (Official Journal, English Special Edition 1969 (I), p. 125), six consignments of frozen boneless beef from Argentinia which were to be transported by road from Rotterdam, the office of departure, to Milan, the office of destination.

A — At the end of 1976 and the beginning of 1977 the plaintiff in the main proceedings, Pakvries BV, customs agents established in Rotterdam, declared to the Collector of Customs and Excise at Rotterdam, in accordance

The Netherlands Fiscal Intelligence and Investigation Branch later discovered that the goods had never been produced at the office of destination but had been put into free circulation irregularly in Belgium. On 19 September 1979 the Collector thereupon demanded inter alia that the plaintiff pay the agricultural levies due, totalling HFL 695945.30.

In its appeal against that demand for payment the plaintiff does not dispute the facts. It contends, however, that the Collector has no authority to demand payment of the agricultural levies. According to Article 36 (1) of Regulation No 542/69, where an offence or irregularity is committed in the course of a Community transit operation, the duties or other charges which may be chargeable are to be recovered by the Member State in which the offence was committed, in accordance with the provisions laid down by law, regulation or administrative action in that State. Since the offence took place in Belgium, the Belgian authorities are therefore authorized to recover the levies.

The defendant, the Netherlands Minister for Agriculture and Fisheries, contends, on the other hand, that the Netherlands are authorized to recover the levies. It bases its contention on Article 59 of Regulation No 542/69, which is worded as follows:

In the Minister's view, the Supplementary Protocol containing special provisions on taxation, annexed to the Benelux Convention of 29 April 1969 on cooperation in administrative and criminal matters in the context of the arrangements for the attainment of the aims of the Benelux Economic Union, must be regarded as an agreement within the meaning of that provisions.

He considers that Article 5 of the Supplementary Protocol, containing special rules for the recovery of duties in the event of a document being issued for use in more than one Benelux country, is applicable in this case. According to Article 5 (2), the levies are to be recovered by the Netherlands, that being the country in which the transit documents were issued.

By judgment of 20 May 1983 the College van Beroep voor het Bedrijfsleven [administrative court of last instance in matters of trade and industry] stayed the proceedings and referred the following question to the Court for a preliminary ruling under Article 177 of the EEC Treaty:

B — My views on that question are as follows :

The provision in question, Article 59, contains a proviso for the benefit of Belgium, Luxembourg and the Netherlands. It allows the Benelux countries to derogate from Regulation No 542/69 by applying to the Community transit documents the agreements concluded or to be concluded between them with a view to reducing or abolishing formalities at their frontiers. The Netherlands Government and the Commission take the view that the Benelux Convention, to which the Supplementary Protocol is annexed, must be regarded and applied as an agreement within the meaning of Article 59. The plaintiff, on the other hand, takes the view that only those Benelux provisions which in the strict sense contribute to the reduction of formalities at intra-Benelux frontiers are exempt from the application of the Community transit rules and that the rules conferring the authority to deal with irregularities are not part of them.

C — In my opinion, the question submitted should therefore be answered as follows :

Article 59 of Regulation (EEC) No 542/69 of the Council of 18 March 1969 on Community transit must be interpreted as meaning that the Netherlands may apply to a Community transit document a provision of a Benelux agreement which, in derogation from Article 36 (1) of that regulation, provides that the charges are to be recovered in the Benelux country in which the transit document was issued, even if it is found that an irregularity was committed in the course of Community transit in another Benelux country.

1 Translated from the German.

2 Aanvullend Protocol houdende bijzondere bepalingen op het stuk van de belastingen.

3 Benelux Overeenkomst inzake de administrative en strafrechtelijke samenwerking op het gebied van de regelingen die verband houden met de verwezenlijking van de doelstellingen van de Benelux Economische Unie.