Opinion of Mr Advocate General Mischo
Mr President,
Members of the Court,
The actions brought by Cerealmangimi SpA and Italgrani SpA in respect of the Commission's decision of 22 March 1985 refusing to allow the remission of monetary compensatory amounts with regard to exports by those undertakings to Belgium and France raise essentially the following two legal questions:
The fact that the applicants contest the applicability of monetary compensatory amounts in this case gives rise to a preliminary question: whether a Commission decision refusing to allow the remission of import or export duties on equitable grounds may be challenged on the ground that the national authorities' decision to impose such duties was unlawful.
In favour of the admissibility of such a submission it may be argued that the contested decision is based on the premise — which the Commission endeavours to prove in a detailed manner — that monetary compensatory amounts were in fact payable for the exports in question. It might be said that if the Commission has first established the existence of a customs debt before adopting a decision refusing to apply Article 13 of Regulation No 1430/79 in favour of the applicants, the latter should logically be able to seek the annulment of that decision by contesting the cogency of the reasoning upon which it is based. If it could be shown that the monetary compensatory amounts were not in fact payable, the decision would be based on a mistake of law and ought consequently to be annulled.
That does not, however, mean that the Court could, in an action for challenging the validity of a decision based on Article 13 of Regulation No 1430/79, order the repayment of monetary compensatory amounts which had been collected unlawfully. As will be seen in a moment, proceedings for recovery of unlawful payments are a matter for the national courts.
The following arguments may be put forward in support of the opposite view.
In the first place, as the Court has stated in a number of judgments, it is clear from the provisions on the Communities' own resources that disputes in connection with the reimbursement of sums collected by the Member States on behalf of the Community and in connection with the revenue which they are bound to collect on its behalf are a matter for the national courts and must be settled by them in accordance with national law in so far as no provisions of Community law are relevant.
In this case Community law, that is to say Article 2 of Regulation No 1430/79, expressly provides that where there is a dispute with regard to the very existence of a customs debt an application for repayment or remission of duties is to be submitted to the appropriate customs office within three years of the date on which those duties were entered in the accounts by the authority responsible for their collection.
The new version of Article 13 unambiguously confirms that the provision relates only to situations other than those referred to in Sections A to D of Regulation No 1430/79. In fact Section A includes Article 2 which applies, as we have seen, when there is no customs debt.
The Court has already stated in a case to which the new version of Article 13 was not yet applicable that in the light of the recitals in the preamble to Regulation No 1430/79 (in particular the seventh recital) Article 13 appears to be a general equitable provision designed to cover situations other than those which have most often arisen in practice and for which special provision could be made when the regulation was adopted (paragraph 7 of the Court's judgment of 15 December 1983 in Case 283/82 Papierfabrik Schoellershammer H. A. Schoeller v Commission [1983] ECR 4219).
Finally, logic itself dictates the exclusion of the possibility of contesting whether a payment was due at the same time as remission thereof is sought on equitable grounds.
I must therefore conclude that an individual who challenges a decision based on Article 13 of Regulation No 1430/79 may not put forward submissions designed to show that there was no customs debt. The submissions in question are therefore inadmissible.
I shall nevertheless examine the question of the applicability of the monetary compensatory amounts in this case, should the Court not agree with my conclusion.
I — Were monetary compensatory amounts applicable?
In order to place that question in its context I would like to remind the Court very briefly of the background to and the course of the transactions effected by the two Italian undertakings under authorizations granted under the inward processing arrangements established by Council Directive 69/73/EEC. The authorizations granted to the two undertakings included the possibility of having recourse to the system of equivalent compensation provided for in Article 24 and to the system of prior exportation provided for in Article 25 of the directive. The undertakings carried out prior exportations of cereal products (in particular durum-wheat meal) from Italy to non-member countries and finally discharged those inward processing operations by importing durum wheat released for free circulation in Italy. At the same time as the durum wheat was released for free circulation in order to discharge the prior exportation it was the subject of a declaration of exportation to France or Belgium (second recital in the preamble to the contested decision).
The dispute between the parties turns on the question of which of the following two provisions should govern the exports as regards the applicability of monetary compensatory amounts:
There can be no dispute about the answer once the aforementioned transactions are analysed closely. It will be apparent that there are in fact two distinct transactions:
It was precisely in order to facilitate transactions falling within the first category that inward processing arrangements were established. Those arrangements are defined in Article 2 (1) of Directive 69/73 as the customs arrangements whereby imported goods which do not satisy the conditions contained in Articles 9 and 10 of the Treaty may be processed without giving rise to liability for payment of customs duties, of charges having equivalent effect or of agricultural levies (including monetary compensatory amounts) where such goods are intended for export outside the customs territory of the Community wholly or partly in the form of compensating products...
In this case compensating products were exported before the imports were effected (Article 25 of Directive 69/73). They should therefore have been products derived from processing of goods of the same kind and quality and having the same technical characteristics as those of the imported goods (Article 24 of the directive).
The former, that is to say the compensation goods, since they are not themselves subject to inward processing arrangements, were in free circulation in Italy in accordance with Article 2 (1) of Directive 75/349.
The latter, that is to say the import goods, for which the compensating products were substituted in advance, should therefore, under Article 5 (1) of Directive 75/349, be regarded as having the same status.
Moreover, one of the conditions which must be laid down by the competent authorities in the authorization granting the benefit of inward processing arrangements is the time-limit within which the importation of import goods corresponding to a prior exportation of compensating products must take place (Article 9 (1) of Directive 75/349). To ensure that the time-limit is observed it is even provided that the holder of the authorization must lodge a security in order to guarantee payment of the export duty payable in respect of the compensating products if they are not exported under inward processing arrangements (Article 10).
In that context I refer to the fact that Council Regulation (EEC) No 1999/85, which is designed to replace Directive 69/73 and the directives adopted to implement it with effect from 1 January 1987, expressly provides that in the case of prior exportation the inward processing arrangements shall be finally discharged when the customs authority has accepted the declaration on the non-Community goods (second paragraph of Article 18 (1)) which must be done within the period laid down (Article 14 (3)). That is the moment at which the inward processing operation is completely settled.
The second operation was then grafted onto that state of affairs: the import goods which had, so to speak, taken the place of the compensation goods (Italian durum wheat) used in advance to manufacture the compensating products previously exported to non-member countries, were re-exported to other Member States.
That operation is completely separate from and subsequent to the first and does not take place under inward processing arrangements. It constitutes part of intraCommunity trade and is, as such, subject to the Community rules on monetary compensatory amounts applicable to trade between Member States.
The situation is therefore the same as if the applicants had proceeded not by means of operations involving equivalent compensation and prior exportation but by means of operations involving compensation known as identical compensation where the very goods which have been imported are re-exported outside the customs territory of the Community as compensating products: in such a case the applicants may export to France and Belgium only Italian durum wheat, which is by definition in free circulation within the Community since the imported durum wheat was used for the manufacture of meal intended for export to non-member countries.
Any other conclusion would be contrary not only to the wording but also to the scheme of the inward processing system. The inward processing system enables Community products destined for non-member countries to be put on an equal footing with products from non-member countries since it makes it possible for Community producers to obtain the goods needed to manufacture their products on the same favourable terms as those available to producers in non-member countries. In many cases that is the only way in which Community producers may compete with their rivals on non-Community markets.
Since the Community is based upon a customs union the inward processing system does not apply, by definition, to trade between Member States.
Therefore, exemption from duties, including monetary compensatory amounts, applies only to imports from non-member countries and exports to non-member countries.
As those principles derive from the very nature of the inward processing system Article 20 of Regulation No 1371/81 can do nothing to change them. That provision, which forms part of a corpus of rules laying down detailed rules for the administrative application of monetary compensatory amounts, provides that no monetary compensatory amounts are to be granted or levied on products declared at the same time both for importation and re-exportation. It therefore presupposes that the monetary compensatory amounts are applicable to each of the two proposed operations and that the grant and levy will cancel each other out financially.
In this case the imports of durum wheat effected under inward processing arrangements were, by definition, carried out under exemption from duties including monetary compensatory amounts. There can therefore be no corresponding compensation since monetary compensatory amounts are not payable in respect of one of the two operations.
In addition, the relevant exports to France and Belgium must be regarded, as has been seen, as relating to a product of Italian origin and not imported. No importation therefore took place, at least nominally; consequently and inevitably there could be no simultaneous re-exportation.
In short, the importation which took place was effected by final discharge of the prior exportation under inward processing arrangements and could therefore not figure in any other operation on pain of giving the persons concerned an unjustified advantage. If the applicants wished to finally discharge their inward processing operations, which they could do only by importing durum wheat and at the same time putting it into free circulation, they could not benefit from the fact that the wheat was at the same time the subject of exportation to France and Belgium. The simultaneous occurrence of those events was merely coincidence in this case and cannot be used to make a single operation from the two operations at issue.
In other words, either the importation of durum wheat complements the exportation of durum-wheat meal to non-member countries, or it is compensated by its re-exportation to other Member States, but not both at the same time; otherwise, as the Commission correctly emphasizes in the sixth recital in the preamble to the decision at issue, the undertakings would benefit from exemption from those amounts (monetary compensatory amounts) on exportation both as regards the durum wheat which was imported and forwarded (to another Member State) and as regards the compensating products which were exported (to a non-member country) and which were obtained, in principle, from the same imported durum wheat.
It must be added that the. argument put forward by the applicants with regard to the amendment of Article 20 of Regulation No 1371/81 cannot be accepted.
As the Commission showed in a convincing manner in its rejoinder, it is not possible to conclude from that amendment, or from the views of certain members of the Committee on Customs Procedures for Inward Processing, that Article 20 was, either before or after its amendment, applicable to operations of the kind at issue in the cases before the Court.
From all the foregoing considerations I conclude that the monetary compensatory amounts were in fact payable and that undertakings as specialized as the applicants could hardly have been unaware of that. It remains to ascertain whether the Commission, acting on the basis of Article 13 of Regulation No 1430/79, was right in this case to refuse to grant them relief on equitable grounds.
II — The application of Article 13 of Regulation No 1430/79
1. In the course of the hearing the applicants abandoned their submission based on a subjective Community right on the part of the undertakings to exemption from payment of monetary compensatory amounts.
2. It remains to be considered, therefore, whether the error made by the Naples customs authorities may nevertheless constitute a special circumstance within the meaning of Article 13 of Regulation No 1430/79 because it was repeated on numerous occasions, because it was also made simultaneously by the British and French customs authorities and because even certain experts (possibly those of the United Kingdom and France?) convening in the Committee on Customs Procedures for Inward Processing seem to have been victims of confusion in that regard (see Point G of the summary record of the meeting of that committee on 3 November 1982 produced by the Commission, but offset by Point C thereof).
Conclusion
On the basis of all the foregoing considerations I propose that the Court should dismiss the application and order the applicants to pay the costs.
1 Translated from the French.
2 Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (Official Journal 1979, L 175, p. 1).
3 Sec in particular its judgment of 21 May 1976 in Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraphs 9 and 11 of the decision, and its judgment of 27 March 1980 in Joined Cases 66, 127 and 128/79 Amministrazione delle Finanze v Salumi [1980] ECR 1237, paragraph 17 of the decision.
4 Council Regulation (EEC) No 1672/82 of 24 June 1982 (Official Journal 1982, L 186, p. 1).
5 Council Directive 69/73/EEC of 4 March 1969 on the harmonization of provisions laid down by law, regulation or administrative action in respect of inward processing (Official Journal, English Special Edition 1969 (I), p. 75).
6 Official Journal 1981, L 38, p. 1.
7 Official Journal 1975, L 156, p. 25.
8 Monetary compensatory amounts are covered by the terms import duties and export duties as defined in a general manner in Community legislation on customs matters since they were introduced in 1971 (see, for example, Article 1 (2) (a) and (b) of Regulation No 1430/79).
9 Council Regulation (EEC) No 1999/85 of 16 July 1985 on inward processing relief arrangements (Official Journal 1985, L 188, p. 1).
10 Ursula Baumann, Le régime douanier de perfectionnement actif, in Revue du Marché Commun, No 280, 1984, p. 406 et seq.
11 Commission Regulation (EEC) No 2883/83 of 14 October 1983 amending for the second lime Regulation (EEC) No 1371/81 laying down detailed rules for the administrative application of monetary compensatory amounts (Official Journal 1983, L 283, p. 14).
12 Official Journal 1979, L 197, p. 1.
13 Judgment of 15 December 1983 in Case 283/82, Papierfabrik Schoellershammer H. A. Scboellerv Commission [1983] ECR 4219; judgment of 13 November 1984 in Joined Cases 98 and 230/83 Van Cend en Loos v Commission [1984] ECR 3763; and judgment of 15 May 1986 in Case 160/84 Oryzomyliv Commission [1986] ECR 1633.
14 See the Court's judgment of 1 July 1986 in Case 185/85 Usinor v Commission [1986] ECR 2079, in particular paragraphs 19 and 23 of the decision.