Report for the Hearing delivered in Case C-117/88
I — Facts and procedure
1. The documents before the Court show that between March 1980 and March 1981 the plaintiff in the main proceedings, a company which deals in textiles, imported textiles from the Netherlands into the Federal Republic of Germany without paying customs duties. As the plaintiff could not produce dispatch documents to prove that the goods originated in the Community or were from nonmember countries but in free circulation in the Community, the German authorities required the plaintiff, as the person liable for further payment of customs duty (weitere Zollschuldnerin), to pay DM 29890.90 in respect of import duties.
2. The German authorities refused to accept as valid proof the declarations and documents which the plaintiff submitted to them, and in which its Netherlands supplier confirmed that the goods originated in or were in free circulation in the Community; they took the view that under Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (Official Journal 1977, L 38, p. 1) only a T2 or a T2L declaration covering the goods in question could constitute such proof.
3. The Finanzgericht (Finance Court) Dusseldorf is inclined to share the plaintiff's view that evidence other than the abovementioned documents must be accepted if Article 9(1) of the EEC Treaty is not to be rendered meaningless. However, the Finanzgericht considers that the arguments of the German authorities based on the wording of Regulation No 222/77 have raised certain doubts as to whether that point of view is correct. For that reason it referred to the Court the following question:
4. The order of the Finanzgericht Dusseldorf was received at the Court Registry on 14 April 1988.
5. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were lodged on 4 July 1988 by the Commission of the European Communities, represented by its legal adviser, Jörn Sack, acting as Agent, on 6 July 1988 by the German Government, represented by Martin Seidel, acting as Agent, and on 19 July 1988 by the Spanish Government, represented by Javier Conde de Saro, Director-General of the Office Coordinating Legal and Institutional Community Affairs, and by Rafael Garcia-Valdecasas y Fernández, Head of the Legal Department for the Court of Justice, acting as Agents.
6. Upon hearing the Repon of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without a preparatory inquiry.
7. By a decision of 7 June 1989 pursuant to Article 95(1) and (2) of the Rules of Procedure, the Court assigned the case to the Fourth Chamber.
II — Written observations submitted to the Court
8. The Commission raises the preliminary point that Articles 9 and 10 of the Treaty are provisions establishing principles which must be implemented by provisions of Community secondary legislation or, in the absence of such provisions, by provisions of national law. Only detailed customs legislation can define the precise meaning of products originating in Member States and products coming from third countries which are in free circulation in Member States. Of course, secondary legislation may not frustrate the very principles which it is meant to apply. The Commission considers that it does not do so in the present case.
9. In the present case, the provisions implementing Articles 9 and 10 of the EEC Treaty are contained in Regulation No 222/77. The purpose of Regulation No 222/77 is to facilitate the transport of goods within the Community by avoiding the diverse national procedures that it would otherwise be necessary to apply to the import and export of goods. It must therefore be determined whether Regulation No 222/77 accepts only forms T2 and T2L, to which it refers, as proof of the Community status of goods.
10. The Commission points out in that regard that, as is clear from Article 1(1) and (3) of Regulation No 222/77, the Community transit procedure is mandatory for all movements of goods between two points situated in the Community. With regard, in particular, to Community goods (in other words goods which meet the conditions laid down in Articles 9 and 10 of the EEC Treaty), it follows from Article 39 of Regulation No 222/77 that they must be covered by a T2 declaration in order to be able to be carried under the procedure for internal Community transit.
11. Leaving aside the fact that it underlines the need to use, in principle, the T2 declaration to establish the Community status of goods, the presumption laid down in Article 1(4) of Regulation No 222/77 is not applicable in the present case because the goods in question were not transported between the Netherlands and the Federal Republic of Germany under the Community transit procedure.
12. The Commission also points out that while there are certain exceptions, for example those provided for in Anieles 48 and 49 of Regulation No 222/77, where mere official or private declarations are sufficient proof of the Community status of goods, that merely highlights the fact that in general it is the prescribed Community transit documents which must be used as proof.
13. That observation is corroborated by the fact that in certain cases, which are specifically mentioned in Regulation No 222/77, the provisions relating to the Community transit procedure are not applicable and yet even in those cases a Community transit document must be produced for the provisions of the EEC Treaty relating to the free movement of goods to be applicable (see Article 47).
14. It follows from Article 9 of Regulation No 222/77 and Articles 69 et seq. of Commission Regulation (EEC) No 223/77 of 22 December 1976 (Official Journal 1977, L 38, p. 20) that the document prescribed for that purpose (document T2L) may be issued retroactively by the competent authorities of the Member State of departure. For that to happen, the applicant must simply provide appropriate proof of the Community status of the goods to the customs authorities of the Member State in question, using all available means of proof. On the other hand, the authorities of the Member State into which the goods have been imported may not, in principle, accept any proof other than documents T2 and T2L, and in particular they may not accept as proof any declarations made by suppliers. Those rules are justified by the fact that the authorities which are competent to decide the true status of the goods are those in the best position to judge the validity of the means of proof submitted, in other words the customs authorities of the Member States in which the goods originated.
15. According to the Commission, those circumstances led the Court, in its judgment of 22 October 1970 in Case 12/70 Craeynest v Belgium [1970] ECR 905, concerning the provisions in force before the introduction of the Community transit procedure, to rule that ... importers of goods from another Member State may only benefit from the intra-Community scheme in respect of goods covered by certificate DD4 and that that rule applies ... even though the Community origin of the product in question could be established by means other than the said certificate. The Commission believes that the principles laid down in that judgment are also applicable to the documents prescribed for the Community transit procedure.
16. The German Government makes the preliminary observation that while the substantive conditions for determining the Community status of goods are found only in Articles 9 and 10 of the EEC Treaty, nevertheless, the manner in which that status must be proved emerges from Council Regulation No 222/77 and Commission Regulation No 223/77 (which implemented Regulation No 222/77 and was subsequently replaced by Commission Regulation (EEC) No 1062/87).
17. The provisions of those regulations incorporate the principle of negative proof, according to which goods which are regularly imported into a Member State over an internal frontier are deemed to be Community goods unless an external Community transit document (document Tl) is presented.
18. The conditions under which goods are to be transported within the Community are precisely defined by the same regulations. They lay down the principle that the internal Community transit scheme must apply to the movement of Community goods. The exceptions to that principle are expressly provided for (Articles 1(4), 41 and 48 of Regulation No 222/77).
19. If the conditions laid down for the transport of goods are not met, the only way of proving the Community status of the goods is to obtain subsequently a T2L transit document (Article 9 of Regulation No 222/77). In particular, it is scarcely possible to use other supporting documents as proof because Regulation No 222/77 and its implementing provisions list exhaustively the means of establishing the Community status of goods. The purpose of those rules is ensure that when goods move between the Member States standard means of proof prescribed by Community law are used in a uniformly strict manner and that other means of proof, which the Member States could not evaluate, or could do so only with difficulty, are not accepted.
20. That principle, laid down by the Court in its judgment of 22 October 1970 in Case 12/70, must also be applied by analogy in the present case.
21. The Spanish Government describes in its observations the various types of documents required by the Community rules on internal transit (documents T2, T2L and T5) and draws the conclusion that Community law establishes the general principle that, for any movements of goods subject to the Community transit scheme and, in any event, whenever it is desired to prove the Community status of the goods, it is necessary to use the documents provided for that purpose.
22. That rule can only be derogated from by way of exception in very specific and very limited cases (for example under Articles 55 and 56 and Articles 62 and 63 of Regulation No 223/77).
23. It follows that under Community law the only way of proving the Community status of goods or that the goods are in free circulation is by transit documents, and that applies even when there is no transit since there is a document — document T2L — which covers such a case and whose only purpose is to prove the Community status of the goods.
24. That principle was laid down by the Court in its judgment in Case 12/70.
25. The Spanish Government also points out that the mandatory nature of the means of proof laid down by the Community legislation in order to establish the origin of goods emerges from the Court's judgment of 7 February 1979 in Joined Cases 15/76 and 16/76 France w Commission [1979] ECR 321.
1 Language of the case: German.