Opinion of Mr Advocate General Van Gerven delivered on 15 June 1989

1 Original language. Dutch

2 Published in OJ, English Special Edition 1971 (I), p. 343, and OJ 1973, L 80, p. 22, respectively.

3 On common rules for imports (OJ 1974, L 159, p. 1) Annex I is entitled Common list of liberalized products

4 Article 414 prescribes, in particular, a term of imprisonment not exceeding three months, confiscation of the goods involved in the fraud and a fine of between one and three times the value of those goods, for any act of smuggling and any undeclared imports or exports where those infringements relate to goods which are prohibited or subject to a higher rate of tax for the purposes of the customs code. The meaning of undeclared imports or exports of prohibited goods is defined, in particular, in Article 426. According to paragraph 2 of that article, a false declaration is one which has the purpose or effect of circumventing the application of the prohibitions and, according to paragraph 3, it encompasses false declarations relating to the type, the value or the origin of the goods or the designation of the real addressee or the real consignor where those infringements have been committed using false, inaccurate, incomplete or inapplicable documents. According to Article 38(1), any goods whose importation or exportation is prohibited in any way or subjected (in particular) to restrictions or quality standards are regarded as prohibited. Article 38(2) provides that where the importation or exportation is permitted only on submission of an authorization, licence, certificate and so on, the goods are prohibited unless they are accompanied by a document which is in order or if they are presented under cover of an inapplicable document.

5 Articie 410 penalizes with a fine of FF 2000 to 20000 any infringement which is not more severely penalized by another provision of the code and, in particular, any omission or inaccuracy relating to one of the matters which must be set out in a declaration where the infringement has no effect on the application of the duties or prohibitions

6 [1976] ECR 1921. The French Government refers, in particular, to paragraph 35 of the judgment.

7 [1971] ECR 1107, paragraph 9.

8 [1976] ECR 1921, paragraph 21.

9 Sec paragraphs 17 and 18 of the judgment in Donckerwolcke, cited in footnote 5.

10 See paragraph 29 of the Court's judgment in Donckerwolcke. Sec also the Court's earlier judgments of 23 November 1971 in Case 62/70 Bock [1971] ECR 897. paragraph 14. and of 8 April 1976 in Case 29/75 Kaufhof [1976] ECR 431, paragraph 5.

11 Decision 76/839/EEC of 9 September 1976 (OJ 1976, L 304, p. 29), Decision 77/762/EEC of 30 March 1977 (OJ 1977, L 314, p. 33) and Decision 77/482/EEC of 27 May 1977 (OJ 1977, L 198, p 30) Decision 76/926/EEC of 10 November 1976 (OJ 1976. L 364, p. 8) and Decision 77/362/EEC of 3 March 1977 (OJ 1977, L 138, p 29) relate to tariff headings for goods which, according to the French Government's observations, were not packed in the boxes in question.

12 Sec the Court's judgment of 8 April 1976 in Case 29/75 Kaufhof[1976] ECR 443, paragraph 6, and the judgments of 5 March 1986 in Cases 59/84 and 242/84 Tezi I and Tezi II [1986] ECR 916 and 933, paragraphs 43, and 51 and 52

13 See the Opinion of Mr Advocate General Capotorti in Donckerwolcke [1976] ECR 1945, second column.

14 This decision was substantially amended by Commission Decision 80/47/EEC of 20 December 1979 (OJ 1980, L 16, p. 14). See footnote 15 below.

15 [1976] ECR 1921, at pp. 1948 and 1949, adopted by Mr Advocate General Warner in Case 52/77 Cayrol v Rivoira [1977] ECR 2261, at p. 2290. See, in that regard, A. Weber: Die Bedeutung des Art. 115 EWGV für die Freiheit des Warenverkehrs, EuropaRecht, 1979, p. 30 et seq. at pp. 40 and 41; H. Kretschmer: Beschränkungen des innergemeinschaftlichen Warenverkehrs nach der Kommisionsentscheidung 80/47/EWG, EuropaRecht, 1981, p. 63 et seq. at p. 73.

16 Decision 80/47/EEC of 20 December 1979 (OJ 1980. L 16, p 14) made three important amendments. First of all, intra-Community surveillance is now possible only after specific authorization has been given by the Commission (Article 2). Secondly, the decision laid down the specific circumstances in which proof of origin may be required (Article 4). Thirdly, it limited the possibilities of delaying by a few extra days the issue of import documents until the Commission has taken a decision on the request for authorization to adopt protective measures (Article 3(4)). On 22 July 1987, the Commission adopted Decision 87/433/EEC (OJ 1987, L 238, p. 26), whereby it made a number of new adjustments based, in particular, on the Tezi judgments cited in footnote 11

17 See Donckerwolcke, cited in footnote 5, paragraphs 33 to 35 of the judgment, and the Court's judgments of 30 November 1977 in Case 52/77 Cayrol v Rivoira [1977] ECR 2261, paragraphs 34 to 36, and of 28 March 1979 in Case 179/78 Rivoira [1979] ECR 1147, paragraphs 16 and 17

18 See also the judgment cited in footnote 16 in Case 52/77 Cayrol v Rivoira, paragraphs 34 to 39, and the judgment of 28 March 1979 in Case 179/78 Rivoira [1979] ECR 1147, paragraph 18

19 See the Court's judgment of 25 April 1985 in Case 207/83 Commission v United Kingdom [1985] ECR 1201, paragraph 21.