JUDGMENT OF 27. 11. 1984 — CASE 99/83 FIORAVANTI v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

In Case 99/83 REFERENCE to the Court under Article 177 of the EEC Treaty by the Corte d'Appello [Court of Appeal], Brescia, for a preliminary ruling in the proceedings pending before that court betveen

THE COURT (Fourth Chamber) composed of: G. Bosco, President of Chamber, P. Pescatore, A. O'Keeffe, T. Koopmans and K. Bahlmann, Judges, Advocate General: Sir Gordon Slynn Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations submitted to the Court

III — Oral procedure

Decision

The first question, concerning the Agreement and the concept of Community transit

The second question, concerning the issue of T2 consignment notes

The third and fourth questions, concerning the recovery of duties

Costs

I —. Facts and written procedure

1. With particular reference to Articles 1 and 5 of the Agreement between the EEC and the Swiss Confederation on the application of the rules on Community transit contained in Regulation (EEC) No 2812/72 of the Council and to other specific provisions of those rules, must a transit operation involving goods which, after being dispatched from Belgium (customs office at Montzen) to a specific consignee at the free port of Geneva (La Praille), Switzerland, are re-consigned by that person, through the customs office of that free port, to another consignee in the city of Cremona (Italy) and definitively imported there, be regarded as Community transit?

2. In the circumstances under consideration, was it lawful for the Swiss customs authorities to issue CIM international consignment notes containing references to the consignment notes relating to the previous phase of the carriage and to mark them with the symbol T2 indicating internal Community transit, on the basis of the assertion (for which there is no proof inasmuch as Copy N 3 of those documents is presumed lost) that the earlier consignment notes were not marked with any symbol and therefore did not bear the symbol Tl, in the absence of which the Community transit operation had to be treated as internal and not external, that is to say relating to goods which did not come from countries outside the Community?

3. In the case of goods which in fact came from outside the Community (in this case from Australia) and were imported into Belgium temporarily and therefore without the payment of any customs duty in Belgium, the Member State of the Community in which the transit in question began, does that transit operation, which was carried out on the basis of documents permitting internal Community transit, give rise to liability on the part of the country (and of the traders) from which the goods were consigned (Belgium) or on the part of the countiy from which they were subsequently re-consigned (Switzerland) and not on the part of the country (Italy) where the goods were definitively imported on the basis of documents which were formally valid?

4. Since Article 36 (1) of Regulation (EEC) No 542/69 provides that When it is found that, in the course of a Community transit operation, an offence or irregularity has been committed in a particular Member State, the recovery of duties or other charges which may be chargeable shall be effected by that Member State ..., must the recovery of the agricultural levy be effected by the State in which the transit described as being an internal Community transit operation commenced or by the State from which the goods were re-consigned, by means of proceedings against the traders concerned, even though in this case the offence was discovered in Italy?

II —. Written observations submitted to the Court

1. The competent Swiss customs offices are empowered to assume the functions of offices of departure, offices of transit, offices of destination and offices of guarantee.

2. The competent customs offices of the Member States are empowered to issue documents Tl or T2 valid for a Swiss office of destination.

2. For goods referred to in Article 1 (3) of the Regulation on Community transit... the Swiss office of departure shall indicate on the Copy No 3 of the international consignment note that the goods to which it relates are being forwarded under the procedure for internal Community transit. To this end, it shall enter in the Description of goods space the symbol T2 and its stamp.

(a). That responsibility for payment of a customs debt arises not from the carriage of goods, even if such carriage was covered by an irregular document, but from other causes specified in the directive dealing with customs debt;

(b). That liability under administrative or criminal law may attach to a trader if he knowingly uses a false document;

(c). That if the Belgian customs office of departure had not entered the symbol Tl on the international consignment note, liability on the part of Belgium would be conceivable and in fact, in a Community transit operation, the customs office of departure has the task, inter alia of verifying the customs status of the goods, and if, in consequence, they were to be carried under the simplified procedure for goods carried by rail, the customs office of departure should enter the symbol T1 on the international consignment note; that aspect may however not be pertinent to the decision to be given.

III —. Oral procedure

1. By an order dated 20 April 1983, which was received at the Court on 30 May 1983, the Corte d'Appello [Court of Appeal], Brescia, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty four questions on the interpretation of the Agreement between the European Economic Community and the Swiss Confederation on the application of the rules on Community transit (Official Journal 1973, L 365, p. 226) (hereinafter referred to as the Agreement) and of Regulation No 542/69 of the Council of 18 March 1969 on Community transit (Official Journal, English Special Edition 1969 (I), p. 125).

2. Those questions were raised in proceedings between Claudio Fioravanti, a customs agent, (the plaintiff in the main proceedings), and the Italian State Finance Administration (the defendant in the main proceedings).

3. In the order requesting a preliminary ruling the Corte d'Appello states that the plaintiff in the main proceedings, in his capacity as a customs agent, was instructed to clear through customs three consignments of butter which had originated in the Community and had been imported from Belgium. On the basis of the documentation received, which was genuine and formally in order, he submitted the definitive import declarations in respect of the goods. The goods were then cleared through customs on the basis of three customs entry documents issued by the Cremona customs authorities, at the premises of Magazzini Generali Cariplo, where they had been stored.

4. Subsequently, the Italian customs authorities established that the goods had come from Australia and had been imported into Belgium temporarily in order to be processed, were then sent from Belgium to a Swiss undertaking in the free port of La Praille, Geneva, and from there were re-consigned to Gormec Sri, in Cremona, where they were cleared through customs by the plaintiff in the main proceedings.

5. According to the Corte d'Appello, the Swiss customs authorities had marked the CIM international consignment notes issued for the onward dispatch with the symbol T2, indicating internal Community transit, because of an alleged error which, it is assumed, resulted from the loss of Copy No 3 of the consignment notes issued in Belgium, which should have been marked with the symbol indicating the Community or non-Community origin of the goods. Under the regulations in force, an operation is deemed to constitute internal Community transit in the absence of the symbol Tl indicating the non-Community origin of the goods.

6. The Italien customs authorities thereupon calculated that the agricultural levies payable at the dates of the various import documents on the consignments in question as goods originating in a nonmember country amounted to LIT 243400755. It required Gormec Sri and, in the alternative, Mr Fioravanti, who was liable on a subsidiary basis under Article 41 of the Italian Customs Law, to pay the sum in question. Gormec Sri did not pay and attempts to levy execution against that company proved fruitless. Consequently, on 17 May 1977 the State Finance Administration served an order on Mr Fioravanti requiring him to pay the abovementioned sum of LIT 243400755.

7. Mr Fioravanti challenged that order before the Tribunale di Brescia [District Court, Brescia]. He put forward several arguments in defence of his position, contending in particular that the authority which issued the order lacked jurisdiction. He observed, in that regard, that the infringements or irregularities concerning the Community transit in question had been committed in another Member State (Belgium) or in a State associated with the EEC for the purposes in question by virtue of an international agreement (Switzerland) and that, by virtue of Article 36 of Regulation No 542/69, the recovery of duties or other charges which may be chargeable shall be effected by that Member State.

8. The State Finance Administration contended that the circumstances provided for by the article referred to had not arisen in this case. It maintained that the operation in question did not constitute Community transit, that is to say transit between Member States via Switzerland, but transit from a nonmember country, namely Switzerland, since the operation whereby the butter was transported from Geneva to Cremona on the instructions of a person who was not the sender of the original consignment from Montzen in Belgium but was in fact the person who received that consignment was completely independent of the latter operation and therefore the essential precondition for its classification as a Community transit operation, namely that the goods should come from a Member State of the Community, was not fulfilled.

9. The Tribunale di Brescia dismissed Mr Fioravanti's objection and he therefore appealed to the Corte d'Appello, Brescia, which submitted the following questions to the Court of Justice for a preliminary ruling:

10. The national court assumes that the No 3 copies of the consignment notes were lost. However, in the course of the proceedings before the Court of Justice, Mr Fioravanti produced photographic copies of certain documents which he stated to be the No 3 copies of the consignment notes in question. They bore the symbol T2. If it were established that those documents were the consignment notes issued in Belgium, it could be concluded that they did not bear the symbol Tl, with the result that the goods were subject to the internal Community transit procedure. It is for the national court to determine whether that was the position in the case of the goods in question or a part of them.

11. According to the provisions of Regulation No 542/69, movements of goods which do not satisfy the conditions laid down in Articles 9 and 10 of the EEC Treaty are subject to the external Community transit procedure. Movements of goods which satisfy those conditions are subject to the internal Community transit procedure. Those provisions have been amended by subsequent regulations, in particular, with regard to the carriage of goods by rail, by Regulation No 304/71 of the Commission of 11 February 1971 (Official Journal, English Special Edition 1971 (I), p. 63).

12. Goods that are to be carried under the procedure for external Community transit must be covered by a Tl declaration. Goods that are to be carried under the procedure for internal Community transit must be covered by a T2 declaration. The forms for the declarations are made up in sets comprising at least the following copies:

13. Mr Fioravanti, the Government of the Italian Republic and the Commission, which have submitted observations to the Court, agree that the first question should be answered in the affirmative.

14. It is true that by virtue of Article 7 (1) of Regulation No 542/69, the Community transit procedure is not to apply to the carriage of goods by rail under the procedure laid down in the TIF Convention, provided that the operation begins or is to end outside the Community. As regards the application of the Agreement, the term Community in that article refers exclusively to the European Economic Community (Article 2 (2) of the Agreement). However, by virtue of Article 1 of the Agreement, the rules on Community transit are to apply to the movement of goods between two points situated in the Community via the territory of the Swiss Confederation, whether the goods are consigned direct, with or without transhipment in Switzerland, or are re-consigned from Switzerland, where appropriate after storage in a customs warehouse. Article 5 of the Agreement lays down the conditions for the issue of T2 or T2L documents for goods which are re-consigned from Switzerland after storage in a customs warehouse.

15. It must therefore be stated in reply to the first question that where goods are sent from Belgium to a specified consignee in the free port of La Praille, Geneva (Switzerland), and are re-consigned by that person through the customs office of that free port to another person in Italy, the operation must be regarded as constituting Community transit.

16. The second question is intended to determine whether, and if so in what circumstances, the Swiss customs authorities may issue CIM International Consignment Notes bearing the symbol T2 to indicate internal Community transit. In that connection, it must be remembered that, by virtue of Article 6 of the Agreement, the competent Swiss customs offices are empowered to assume inter alia the functions of offices of departure, offices of transit, offices of destination and offices of guarantee. Subject to certain provisions specified in the Agreement, the issue of T2 documents by a Swiss office of departure is subject to the presentation of T2 documents drawn up in a Member State. The competent offices of departure in the Member States are empowered to issue Tl or T2 documents which are valid for a Swiss office of destination.

17. It follows that where goods accompanied by T2 documents drawn up in a Member State are re-consigned in the circumstances referred to in Article 5 of the Agreement the Swiss office of departure is empowered to issue T2 documents for a destination in a Member State. As the Commission points out in its written observations, it is apparent from the context of Article 7 of Regulation No 304/71 that an international consignment note issued in a Member State has the force of an internal Community transit document, unless the office of departure marks space No 25 with the symbol Tl. Consequently, on the basis of an international consignment note issued in a Member State and not bearing the symbol Tl, which is therefore valid as an internal Community transit document, the Swiss authorities issue, in the case of re-consignment under the simplified procedure for goods carried by rail, a new international consignment note having the force of an internal Community transit document. They must for that purpose enter the symbol T2 in space No 25 in such a consignment note. On the other hand, if Copy No 3 of the consignment note is missing or if it bears the symbol Tl, the Swiss authorities are not empowered to issue a consignment note bearing the symbol T2.

18. It must therefore be stated in reply to the second question that, where goods coming from a Member State are accompanied by a consignment note on which the symbol T2 has been entered by the office of departure in that Member State or on which the symbol Tl is not entered in space No 25, the Swiss office of departure is authorized, in the case of re-consignment to a destination in a Member State, to issue a new consignment note bearing the symbol T2 in space 25. If Copy No 3 of the consignment note is missing or it it bears the symbol Tl, the Swiss office of departure is not empowered to issue a consignment note bearing the symbol T2.

19. Article 36 (1) of Regulation No 542/69, which was in force at the material time, provided:

20. Mr Fioravanti maintains that when the goods arrived in Italy they were accompanied by consignment notes bearing the symbol T2 The Italian customs authorities therefore properly admitted the goods without charging customs duties and agricultural levies, since no offence or irregularity within the meaning of the regulation had been committed in Italy.

21. The Commission considers that Article 36 of Regulation No 542/69 is not applicable to this case. It maintains that the release into circulation in a Member State of non-Community goods which were not previously in tree circulation in the Community causes customs duties and other charges payable in respect of their release into circulation to become due That event occurred in Italy and the duties and charges must be recovered there. The simple fact of entering the symbol T2 on the consignment notes accompanying non-Community goods does not give rise to the collection ot any duty or charge. For that reason Article 36 of the regulation is not applicable, in the Commission's view.

22. That argument cannot be accepted. The internal Community transit system requires a provision governing the case where, as a result of an irregularity in the application of the system, the duties and other charges payable are not collected. The Commission has been unable to indicate to the Court the nature of the duties and charges referred to by the provision in question which would be payable in the event of an offence or irregularity other than the duties and charges payable upon release into free circulation or upon exportation. It must therefore be concluded that Article 36 of the regulation applies to an offence or irregularity committed in connection with a Community transit operation and resulting in the non-collection of the duties or other charges which should have been collected.

23. It must therefore be stated in reply to the third and fourth questions that, where, by reason of an offence or irregularity committed in connection with a Community transit operation, the duties and other charges payable are not collected, recovery of those duties and charges is to be effected by the Member State in which the offence or irregularity was committed, in accordance with the laws, regulations and administrative provisions of that State.

24. The costs incurred by the Government of the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (Fourth Chamber), in reply to the questions submitted to it by the Corte d'Appello, Brescia, by order of 20 April 1983, hereby rules:

1 Where goods are sent from Belgium to a specified consignee in the free port of La Praille, Geneva (Switzerland), and arc re-consigned by that person through the customs office of that free port to another person in Italy, the operation must be regarded as constituting Community transit.

2 Where goods coming from a Member State are accompanied by a consignment note on which the symbol T2 has been entered by the office of departure in that Member State or on which the symbol Tl is not entered in space No 25, the Swiss office of departure is authorized, in the case of re-consignment to a destination in a Member State, to issue a new consignment note bearing the symbol T2 in space 25. If Copy No 3 of the consignment note is missing or if it bears the symbol Tl, the Swiss office of departure is not empowered to issue a consignment note bearing the symbol T2.

3 Where, by reason of an offence or irregularity committed in connection with a Community transit operation, the duties and other charges payable are not collected, recovery of those duties and charges is to be effected by the Member State in which the offence or irregularity was committed, in accordance with the laws, regulations and administrative provisions of that State.