Report for the Hearing delivered in Joined Cases C-153/88 to C-157/88

I — Facts and procedure in the main proceedings

1. In the five cases which are the subject of these proceedings, the main proceedings, between the customs authorities and certain traders, are concerned essentially with the question whether or not account should be taken, in calculating the weight which determines the import quota and customs duties on importation, of the accessories which normally accompany the textile part of a camping tent, namely, the poles, pegs, ropes or other accessories.

2. On 23 October and 18 November 1986, the French customs authorities summoned several importers to appear before the tribunal correctionnel (Criminal Court), Nanterre, charged with the offence of making false declarations or engaging in fraudulent practices in respect of imports. The alleged offence related to imports of camping tents originating in South Korea carried out in 1983, the effect of which was to evade restrictive measures and payment of customs duties, value-added tax and other taxes.

3. At the material time, imports of such products were governed, on the one hand, by Council Regulation (EEC) No 3589/82 of 23 December 1982 on common rules for imports of certain textile products originating in third countries (Official Journal 1982, L 374, p. 106), as amended by Council Regulation (EEC) No 3762/83 of 19 December 1983 (Official Journal 1983, L 380, p. 1) and, on the other, by Council Regulation (EEC) No 3378/82 of 8 December 1982 (Official Journal 1982, L 363, p. 92) applying generalized tariff preferences for 1983 to textile products originating in developing countries.

4. Regulation No 3589/82 provides, inter alia, in regard to imports of the products at issue into the Community for quantitative limits for each supplier country, expressed in terms of weight, and Regulation No 3378/82, provides, inter alia, in regard to the same products, for the total suspension of customs duties within the framework of the Community tariff ceilings, also expressed in terms of weight.

5. Since, in such cases, the quantities laid down were divided into national quotas among the Member States, Regulation No 3589/82 sets up a double checking system to ensure compliance with the quantitative limits. On the one hand, the competent authorities of the supplier countries are to issue export licences in respect of all consignments of textile products subject to the quantitative limits established and, on the other, the authorities of the Member State designated on the export licence as the country of destination of the goods concerned are to issue an import licence automatically within a maximum of five working days of the presentation by the importer of the original of the corresponding export licence.

6. When the quantitative limit is reached, the supplier country is to issue no further licences and no further imports are thus possible. Furthermore, Article 10 of Regulation No 3378/82 provides that imports are to be charged against the national shares and Community ceilings as and when they are entered for free circulation and accompanied by a certificate of origin. Suitable machinery is provided for the reintroduction of the levying of normal customs duties as soon as possible once the ceiling is reached. Above the ceiling, normal imports are possible only within the quantitative limits laid down generally each year.

7. The quantitative limits and ceilings in regard inter alia to camping tents, are expressed in terms of weight (tonnes) and, consequently, if the accessories which normally accompany the textile part of the tent, namely, the poles, pegs, ropes or other accessories, were included in the calculation of the weight, the quantitative limits and ceilings would be very rapidly reached. In the first case, no excess could be accepted and in the second, any excess would have to be imported at the normal rate of customs duty.

8. By judgment of 25 June 1987, the tribunal correctionnel de Nanterre decided to stay the proceedings in Cases C-153/88 to C-157/88 and to refer a question to the Court of Justice for a preliminary ruling on the interpretation of the Community regulations, in particular Council Regulation (EEC) No 2894/79 of 10 December 1979 (Official Journal L 332, p. 1), and Nos 3589/82 and 3762/83, cited above, in order to ascertain whether, for the determination of the import quota, account should be taken of the weight of the textile material or the total weight including tent poles and tent pegs.

9. The judgments making the reference were received at the Court Registry on 3 October 1988.

10. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted by the defendant in the main proceedings, Kühne et Nagel, represented by Mireille Famchon, avocat with the right of audience before the cour d'appel, the French Government, represented by Edwige Belliard, acting as Agent, and by the Commission of the European Communities, represented by Guido Berardis, acting as Agent.

11. By order of 23 November 1988, the Court decided to join Cases C-153/88, C-154/88, C-155/88, C-156/88 and C-157/88 for the purposes of the written and oral procedure and the judgment.

12. After hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry and to assign the cases to the Fourth Chamber.

II — Written observations submitted to the Court

1. Kühne et Nagel, the defendant in the main proceedings, draws attention to the import formalities which it completed and indicated that the actual form of the declaration that goods are to be placed on the market does not make it possible to draw a distinction between the total net weight of the goods and the weight of the textile fabric subject to the quota.

2. The French Government considers that account should be taken of the fabric and the accessories in determining the import quota (in tonnes) for tent fabric originating in and coming from Korea and other nonmember countries. That interpretation is confirmed, in the first place, by an explanatory note issued by the Customs Cooperation Council in February 1971. Such a classification also complies with the general rules for the interpretation of the Tariff Nomenclature annexed to the Convention on Nomenclature for the Classification of Goods in Customs Tariffs, on which the Common Customs Tariff is based.

3. The Commission considers, with regard to the Community legislation in question, that the reference in the judgment of the national court to Regulation No 2894/79, cited above, appears to be incorrect if the importations at issue took place in 1983. In any event, the regulations involved are annual measures which are repeated from year to year and the reasoning of principle is not affected, regardless of whether reference is made to one or the other.

III — Oral Procedure

Daewoo SARL, which did not submit written observations in this case, was represented at the hearing on 10 October 1989 by M. Menant and argued essentially that account should be taken only of the weight of the textile part of the tent which determines the import quota and customs duties on importation.

In that regard, it points out that the permit and the export declaration supplied by the Korean authorities were drawn up solely on the basis of the quota available under the Multifibre Arrangement. It points out that account was taken of the textile part of the tent and not of the accessories such as pegs, poles, ropes or other items which represent nearly one third of the weight of a tent.

1 Language of che case: French.