Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. Proceedings are pending between the German company Foto-Frost and the Hauptzollamt (Principal Customs Office) Lübeck-Ost concerning the post-clearance recovery of import duties in respect of goods manufactured in the German Democratic Republic and purchased by an undertaking established in the Federal Republic of Germany from companies established in other Member States. In connection with those proceedings the Finanzgericht (Finance Court) Hamburg has requested the Court to give a preliminary ruling on four questions, two of which bear on issues of great delicacy. The Finanzgericht wishes to know whether lower courts in the Member States are entitled to review the validity of Community measures — the measure involved in this instance is a decision addressed by the Commission to the Federal Republic of Germany—and how the rules governing the recovery of duties must be interpreted in the light of the Protocol on German internal trade annexed to the EEC Treaty.

2. Foto-Frost is an undertaking established in the Federal Republic of Germany which operates as an importer, exporter and wholesaler of photographic products. Between 23 September 1980 and 9 July 1981 it purchased various consignments of prismatic binoculars manufactured by Carl Zeiss, Jena (German Democratic Republic). But, in view of an agreement between that company and the Zeiss company of Oberkochen (Federal Republic of Germany) whereby products manufactured by Carl Zeiss, Jena, may be imported into the Federal Republic only via other countries, the products were purchased from companies based in Denmark and the United Kingdom and supplied from customs warehouses in Denmark and the Netherlands. Subsequently, some of the binoculars were exported (to Italy and South Africa) and some were sold to other companies which, in turn, exported them.

3. For the sake of a better appreciation of the facts which I have just rehearsed and of the issues on which the Court is to give a ruling, it is desirable to examine the Community rules with regard to the post-clearance recovery of import duties and the rules applicable to German internal trade.

4. In my estimation, the issue raised by the Finanzgericht's first question is one of the thorniest that the Court has ever had to tackle. What has in fact to be decided is whether, in the light of Article 177 of the EEC Treaty, inferior courts in the Member States have jurisdiction to rule on the validity of Community measures either directly or indirectly, that is to say by means of judgments and orders relating to the validity or implementation of the domestic provisions applying the Community measures in question. All the parties involved in these proceedings have asked the Court to answer this question in the negative. I shall say at once that my recommendation will be on the same lines but subject to one exception, a number of doubts and, above all, no little apprehension as to how a judgment in accordance with that proposal would be received.

5. Of the arguments which have just been summarized, the last ones — that is to say those based on the case-law of the Court — seem to me to be of the least significance. The fact is that the question which has been placed before the Court by the Finanzgericht Hamburg is a wholly novel one. It is only today that the Court is called upon to tackle the question expressly; the observations which the Court has made in the past in this connection when determining completely different issues and which therefore took the form of obiter dicta (which, moreover, if I am not mistaken, are intentionally ambiguous) for that very reason cast very little light on the matter. In any event it is certain that those dicta —and a fortiori the proposals with regard to legislative policy which the Court was considering 12 years ago — do not commit the Court in the slightest.

6. I stated earlier that there is an exception to the rule that the national court lacks jurisdiction to rule on the validity of Community measures. I would now make it clear that that exception refers to a clearly defined situation: the question of validity must arise in summary proceedings and it matters not whether they are pending before an inferior court or a court of last instance.

7. The Finanzgericht's second question seeks to establish whether the Commission's Decision of 6 May 1983 addressed to the Federal Republic of Germany is valid. Foto-Frost would answer the question in the negative on the basis of two arguments: (a) where the requirements for the application of the first subparagraph of Article 5 (2) of Regulation No 1697/79 are fulfilled, the Commission is under a duty to decide that the duty should not be recovered; (b) in the case at issue those requirements are fulfilled.

8. There is no need to consider the third question since it was formulated to cover the case of the first question's being answered in the affirmative. It remains, therefore, to answer the fourth question. It will be recalled that the Finanzgericht asks the Court to determine whether goods originating in the German Democratic Republic which had been introduced into the Federal Republic of Germany via a Member State other than Germany by way of the external Community transit procedure fall within the ambit of German internal trade within the meaning of the Protocol annexed to the EEC Treaty, with the consequence that they are exempt from duties, or whether they must be regarded as having been imported from non-member countries and so become liable to the consequences to which such importation gives rise as regards duties and turnover tax.

9. In the light of all the foregoing considerations I propose that the Court should answer the questions referred to it for a preliminary ruling by the Finanzgericht Hamburg by order of 29 August 1985 in the proceedings pending before it between Firma Foto-Frost and Hauptzollamt Lübeck-Ost as follows:

1 Translated from the Italian.