Report for the Hearing in Case C-323/90

I — Facts and Procedure

1. Regulation (EEC) No 3632/85

1. On 12 December 1985, the Council adopted Regulation (EEC) No 3632/85 defining the conditions under which a person may be permitted to make a customs declaration (Official Journal L 350, p. 1, hereinafter referred to as the regulation).

2. Under Article l(2)(a) of the regulation, customs declaration means the act by which a person indicates in the prescribed form and in accordance with the prescribed procedures the wish to place goods under a given customs regime or to bring such a regime to an end.

3. Article 2 of the regulation provides that a customs declaration may be made by any person able to produce or cause to be produced to the competent customs authority, in accordance with the relevant provisions, the goods in question as well as all documents production of which is stipulated by the provisions governing the customs regime requested for the goods.

4. Article 3(1), (2) and (3) of the regulation provide as follows:

2. The applicable Portuguese law

(a) The Customs Reform Law

5. The basic statutory provisions concerning the subjective capacity to make a customs declaration are to be found principally in Decree-Law No 46311 of 27 April 1965 (hereinafter referred to as the Customs Reform Law). That decree-law was amended by Decree-Law No 450/80 of 7 October 1980, to which are annexed the regulations governing the Chamber of Official Customs Agents.

6. Under Article 426 of the Customs Reform Law, only four categories of natural or legal person may submit customs declarations. Those categories are:

7. The first three categories provide for three kinds of representation: by owners' or consignees' agents, by private customs agents, and by customs agents belonging to certain transport undertakings. Common to all three is the fact that the representative acts in the name of the person he represents, namely the owner or consignee, the employer, or the railway or airline company.

8. It is apparent from Article 433(4) and Article 437 of the Customs Reform Law that those three kinds of representation have another characteristic in common: owners' or consignees' agents, private customs agents and customs agents belonging to certain transport undertakings may represent only one principal or undertaking at a time.

9. The representatives referred to in the first three paragraphs of Article 426 of the Customs Reform Law always act as agents, therefore, in the name and on behalf of the owner or consignee of the goods and may not represent more than one principal.

10. The situation is different for the fourth category of representative referred to in Article 426 of the Customs Reform Law. Official customs agents are subject to no limitations either as to the number of persons whom they may represent for the purpose of making customs declarations or as to the kind of representation. Article 461 of the Customs Reform Law lays down that the occupation of customs agent is to be regulated, in all respects not provided for in the Customs Reform Law, by the statutory provisions concerning agency and the provision of services as part of a professional occupation. Those provisions cover both agency with representation (in the name and on behalf of another person) and agency without representation (in the agent's own name but on behalf of another person).

11. Article 38(1) of the regulations governing the Chamber of Official Customs Agents, annexed to Decree-Law No 450/80, defines an official customs agent as follows :

12. Title IV of the Customs Reform Law contains the provisions applicable to official customs agents. Those provisions concern the right to take up the occupation and the finite number of posts available, pursuit of the occupation, accounting rules, rules of conduct and disciplinary measures.

(b) Decree-Law No 43/83

13. The statutory rules applicable to forwarding undertakings are laid down by Decree-Law No 43/83 of 25 January 1983. Article 1 of that decree-law defines forwarding undertakings as commercial companies whose object is to provide services to third parties in connection with the planning, supervision, coordination and management of the operations necessary for completing the formalities and procedures required for the consignment, reception and movement of goods.

14. Article 2 of the decree-law provides that forwarding may be carried out only by undertakings licensed to do so by the Ministry of Housing, Public Works and Transport. The conditions which undertakings must fulfil in order to obtain such a licence are laid down in Article 3 of the decree-law.

15. Article 6(1) of Decree-Law No 43/83 provides that forwarding undertakings may act for legal purposes in their own name or on behalf of another person, assume or be authorized to assume the legal rights and duties of the owner of the goods and manage the affairs or interests of third parties, in accordance with a document authorizing such action or an explicit declaration of responsibility to that effect.

16. However, Article 7(4) provides that forwarding undertakings may not carry on the activity referred to in Article 426 of the Customs Reform Law.

3. Background to the dispute

17. After receiving a complaint from the Portuguese Association of Forwarding Agents, the Commission examined the abovementioned Portuguese legislation in order to determine whether it satisfied the conditions of the regulation. It came to the conclusion that the Portuguese legislation disregards the alternative imposed by Article 3(3) of the regulation inasmuch as it authorizes official customs agents to act as agents both with representation and without representation for the purposes of making customs declarations, although it absolutely prohibits forwarding undertakings from making such declarations.

18. Following correspondence on the matter between the Commission and the Portuguese authorities, the Commission sent the Portuguese Republic a letter of formal notice under Article 169 of the EEC Treaty. In that letter, dated 29 May 1989, the Commission explained how the Portuguese legislation infringed the regulation and requested the Portuguese authorities to submit their observations within two months.

19. By letter of 2 August 1989, the Office of the Portuguese Permanent Representative to the European Communities informed the appropriate department in the Commission that there was no need to amend the Portuguese legislation in issue, and pointed out that Article 6 of the regulation does not deprive Member States of the right to limit the pursuit of the occupation of making customs declarations by laying down conditions themselves.

20. In the light of the Portuguese position, the Commission considered it necessary to deliver a reasoned opinion to the Portuguese authorities, and did so on 30 April 1990. In that opinion, the Commission reiterated its position as set out in the letter of formal notice, and requested the Portuguese authorities to take the steps necessary in order to comply with the terms of its opinion within 30 days from notification thereof.

21. By letter of 24 July 1990 in reply to the reasoned opinion, the Portuguese Republic confirmed the point of view put forward in its letter of 2 August 1989.

22. The Commission therefore decided to bring the present proceedings.

4. Procedure

23. The Commission's application was lodged at the Court Registry on 22 October 1990.

24. By letter of 20 December 1990, the Commission waived its right to submit a reply.

25. Upon 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.

II — Forms of order sought by the parties

26. The Commission, the applicant, claims that the Court should:

27. The Portuguese Republic, the defendant, contends that the Court should:

III — Submissions and arguments of the parties

28. The Commission considers that Article 3(3) of the regulation does not allow Member States to limit to a specific professional category more than one of the two kinds of agency provided for in Article 3(l)(b) and (c). Article 7 of Decree-Law No 43/83 disregards that provision inasmuch as it prohibits an entire category of persons, namely forwarding undertakings, from acting under either kind of agency in order to make customs declarations.

29. That restriction not only discriminates against forwarding undertakings in comparison with official customs agents, but is also contrary to the fundamental objectives of the EEC Treaty with regard to freedom of movement. It obliges forwarding undertakings to employ official customs agents whenever they import goods on behalf of third parties, with all the expense, delay and complication thereby entailed.

30. Community law would still be infringed in the same way even if Article 7 of Decree-Law No 43/83, read together with Article 426(1) of the Customs Reform Law, were interpreted in the manner sought by the Portuguese authorities. On that interpretation, a forwarding undertaking could act as an agent with representation for customs declarations made in the name and on behalf of the owner or consignee of the goods, provided that no more than one principal was represented. Such a condition amounts to the exclusion of forwarding undertakings from making customs declarations as agents with representation as a regular part of their activity, and is therefore equivalent in effect to the abovementioned restriction.

31. Finally, although Article 6 of the regulation does not preclude national provisions regulating the conditions for taking up the occupation of official customs agent, that is to say rules relating to the professional qualifications required and the guarantees necessary for the pursuit of the occupation, that article none the less requires, in the Commission's view, that Article 3(3) of the regulation and the alternative which it imposes should be respected.

32. In the Portuguese Governments submission, Article 7(4) of Decree-Law No 43/83 does not contain an absolute prohibition on forwarding undertakings making customs declarations as agents with representation. It merely seeks to prohibit such undertakings from doing so as a regular part of their activity. Forwarding undertakings may therefore act as agents, provided that they do not represent more than one principal.

33. It is therefore incorrect to say that the right to act as both kinds of agent is limited to official customs agents. That is true only of agency without representation (where the agent acts in his own name but on behalf of another person). As far as agency with representation is concerned, official customs agents are on the same footing as any other person. It therefore follows that Portuguese law respects the alternative imposed by Article 3(3) of the regulation.

34. The Portuguese Government points out that Portuguese law merely prohibits forwarding undertakings from making customs declarations as a regular part of their activity, and that there is no provision of Community law requiring that such undertakings should be allowed to take up that activity. It is, moreover, manifestly incorrect to claim that the fact of limiting one kind of customs declaration to a particular professional category is inconsistent with the free movement of goods.

1 Language of the case: Portuguese.