Opinion of Mr Advocate General Van Gerven

Mr President,

Members of the Court,

1. In its judgment of 6 July 1988, the cour d'appel, Paris, referred the following question to the Court for a preliminary ruling pursuant to Article 177 of the Treaty:

Facts

2. The national court has described the facts in the case pending before it as follows: Mr Levy and Mr Bazini, the appellants, were convicted on 23 December 1985 by the tribunal de grand instance (Regional Court), Paris, of lodging false declarations as to origin with a view to circumventing a ban on imports, contrary to Article 426(2) and (3) and Article 414 of the French Customs Code. The appellants were sentenced to a suspended term of imprisonment of three months and to the payment to the customs authorities, which had intervened in the proceedings as a civil party, of twice the sum of FF 3998357, once by way of confiscation of the goods and once by way of a fine. That conviction stemmed from 22 declarations relating to the importation of articles of clothing for men, women and children, lodged with the French customs office at Le Bourget between 8 March 1976 and 23 May 1977. The value of those goods for customs purposes was FF 3998357 and they were packed in reusable boxes or boxes marked Belgium. They were declared as coming from and originating in Belgium. An investigation carried out on the premises of the Dorotex undertaking, whose sole shareholder was Mr Bazini and which was managed by Mr Levy, followed by a request for international administrative collaboration addressed to the Belgian customs authorities resulted in the finding that the goods in question originated not in Belgium but in South Korea, Pakistan and Taiwan.

The question submitted for a preliminary ruling and the arguments of the parties

3. Observations were submitted to the Court by the French Government and by the Commission. The French Government concludes that, in the first place, the importation of textile products originating in nonmember countries which have been put into free circulation in another Member State could be made conditional on the issue of an import licence and that, secondly, persons responsible for making false declarations as to origin could be sentenced to the penalties prescribed by Article 414 of the French Customs Code when inaccurate or incomplete declarations had been made deliberately and with intent to deceive.

4. The French Government bases its reasoning on a decision which was in force at the material time, in 1976 and 1977, namely Commission Decision 71/202/EEC of 12 May 1971, as amended by Decision 73/55/EEC of 9 March 1973. It cites Article 1 of the decision which is as follows :

5. The Commission's reasoning is as follows : its point of departure is the Court's judgment of 15 December 1971 in Joined Cases 51 to 54/71, International Fruit Company, in which the Court held that Community law precludes the application to intra-Community trade of a national provision which requires, even purely as a formality, import or export licences. That principle is connected with Article 9(2) of the Treaty, as the Court also acknowledged in its judgment of 15 December 1976 in Case 41/76 Donckerwolcke.

Assessment

6. In order to answer the question submitted to the Court for a preliminary ruling it is necessary, in my view, to take as a basis the fundamental principle contained in Article 9(2) in conjunction with Article 30 of the EEC Treaty. This means at the same time that any derogations from the principle of the free movement of goods, which is applicable both to goods put into free circulation in another Member State and to goods produced in the Community itself, must be given a strict interpretation.

7. I shall begin by considering the situation in which the Commission had issued an authorization in respect of the goods in question to derogate from the principle of the free movement of goods, leaving aside the questions concerning the grounds for, and the validity of, such authorizations granted on the basis of Article 115 which the Court has already answered and which have indeed not been raised by the national court.

8. I now turn to the situation in which the Commission has not issued a (valid) authorization for the adoption of protective measures excluding the goods in question from freedom of movement. In a situation of this kind, a Member State can at most be allowed to monitor trade within the Community.

9. The first question therefore relates to the possibility for the Member State concerned of requiring, at the material time and in general terms, that is to say without the goods being identified, an import authorization as a condition for importation from another Member State and of requiring, as a condition for the issue of that import authorization, that the necessary information such as the origin of the goods to be imported should be specified. Such a possibility is based, as I said earlier, on Article 1(1) of Decision 71/202/EEC (cited in paragraph 4 of this Opinion), which empowers the Member States in general terms to require an import authorization with a view to monitoring trade flows within the Community, subject to certain conditions (for goods which are subject to restrictions in external trade and in respect of which deflections of trade are to be feared).

10. Clearly, the answer to the second question referred to in paragraph 8 concerning the severity of the penalties provided for by a Member State must be in the negative. The Court's case-law, and in particular paragraphs 35 to 38 of the judgment in Donckerwolcke, as subsequently reaffirmed, is quite clear in that regard.

11. Those considerations in no way detract from the possibility open to the Member States of drawing a distinction according to the importer's intention, when penalizing purely administrative customs infringements. Community law is silent on that point, provided that the Member States do not apply disproportionately severe criminal penalties (such as those referred to in the preceding paragraph) which are intended to penalize serious customs infringements.

Conclusion

12. In the light of the foregoing observations, I suggest that the Court answer the question submitted by the national court in the following manner:

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.