Report for the Hearing in Case C-210/91

I — Facts and procedure

A — Legal background

1. In accordance with Article 19 of Council Regulation (EEC) No 3599/82 of 21 December 1982 on temporary importation arrangements (OJ 1982 L 376, p. 1), the benefit of temporary importation arrangements with total relief from import duties is to be granted in respect of the personal effects which travellers are carrying on their person for the duration of their stay in the customs territory of the Community. The same provision is laid down in Article 19 of Council Directive 85/362/EEC of 16 July 1985 on the harmonization of the laws of the Member States relating to turnover taxes — exemption from value added tax on the temporary importation of goods other than means of transport (OJ 1985 L 192, p. 20) as regards exemption from VAT.

2. Article 2(2) of each of the foregoing Community measures states that the competent authorities shall take all measures which they consider necessary to ensure that the goods can be identified and that the use to which they are put can be verified. Furthermore, in accordance with Article 12 of Commission Regulation (EEC) No 1751/84 of 13 June 1984 laying down certain provisions for the application of Council Regulation (EEC) No 3599/82 on temporary importation arrangements (OJ 1984 L 171, p. 1), travellers' personal effects are to be allowed the benefit of temporary importation, without a written declaration, under the conditions laid down by the competent authorities.

B — Background to the proceedings

1. On 22 March 1988 a German citizen crossed the border between Yugoslavia and Greece by car at the Evzoni border post. As he entered Greece, a customs official asked him in English and German whether he had anything to declare, mentioning in particular electronic and video equipment and cameras. The traveller answered in the negative. The official nevertheless proceeded to check the vehicle and the articles in it. In so doing he discovered a video camera whose customs status (Community product or product of a non-member country) could not be established. The German tourist maintains that the camera was placed in view in the rear of his car, while the customs official considers that it was carefully concealed.

2. On 29 November 1989 the Commission sent the Hellenic Republic a letter of formal notice under Article 169 of the EEC Treaty. In the letter the Commission stated that the fine inflicted was disproportionate to the seriousness of the offence committed and could thus jeopardize the application of the Community temporary importation arrangements for travellers' personal effects.

3. By letter of 7 February 1990 the Permanent Representation of Greece to the European Communities replied to the Commission's objections and argued that Greece was correctly applying the Community rules on temporary importation, in particular the provisions concerned with the personal effects of travellers. In that connection it argued that the abovementioned legislation allowed the customs authorities to require a verbal declaration from a traveller on the question whether he was carrying articles whose value exceeded the exemption applicable to goods imported definitively. The Greek Government considered that penalties could be imposed for false declarations and that the penalties laid down by Greek law were not disproportionate in relation to the objectives being pursued.

4. The Commission considered that the observations furnished by the Hellenic Republic were not satisfactory, and on 5 November 1990 it issued a reasoned opinion under Article 169 of the EEC Treaty rejecting the Greek Government's assertions and stating that the Greek authorities had imposed a disproportionate fine on the tourist.

5. In its reply of 29 January 1991, the Hellenic Republic contended, first, that goods imported under the temporary importation arrangements are subject to duties and taxes whose collection is merely suspended since the goods are destined to be re-exported. In the case in question the duties and taxes not only applied theoretically, but were also due and payable. Consequently the fine imposed was not considered to be disproportionate, but was lawful and imposed in accordance with the national provisions in force. Secondly, the Hellenic Republic pointed out that administrative penalties and fines are governed by national legislation in so far as there is no Community harmonization with respect to customs offences.

6. The Commission found that the Hellenic Republic had not adopted the necessary measures to comply with its reasoned opinion in the time allowed, and it therefore brought before the Court the present action for failure to fulfil obligations.

C — Written procedure

1. The Commission's application was lodged at the Court Registry on 7 August 1991.

2. The written procedure followed the normal course. 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

The Commission claims that the Court should:

The Hellenic Republic contends that the Court should:

III — Pleas in law and arguments of the parties

A — Admissibility

1. With respect to the subject matter of the proceedings, the Greek Government contends that in its application the Commission mentions for the first time that the inspection carried out by the Greek customs authorities was an instance of an administrative practice and not an isolated incident. According to the Greek Government, the only question which arose at the pre-litigation stage was the specific case of the German tourist and, in the Commission's opinion, the disproportionate nature of the fine imposed on him. There was no allusion to any particular practice on the part of the Hellenic Republic, by reference directly or indirectly to other similar situations, and the provisions of national law governing the legal relations in question were not the subject of observations expressed in general terms either. The Greek Government accordingly considers that the plea in law is inadmissible.

2. The Commission, on the other hand, claims that there is no procedural irregularity, since the Commission's complaints against the Hellenic Republic have been the same both at the pre-litigation stage and in the application. In that connection it maintains, as regards the issue of an administrative practice, that the Commission in fact incorporated in its application information taken from the Greek authorities' reply to its reasoned opinion. According to the Commission, it follows from that reply that the case in question was dealt with in accordance with an administrative practice on the basis of the provisions of national law, as regards both the detection of the offence and the imposition of the fine.

B — Substance

1. The Commission first points out that the video camera which was discovered in the German tourist's luggage was part of his personal effects. The traveller should therefore have benefited from the temporary importation arrangements under the conditions set out in Regulation (EEC) No 3599/82 and Directive 85/362/EEC. In that connection the Commission considers that even assuming that the Greek authorities could make a verbal declaration at the time of crossing the border compulsory, with the possibility of a fine in the event of a false declaration, without thereby breaching Community law, the amount of the fine imposed is disproportionate and thus constitutes a breach of the general principle of proportionality, a principle that has been established by the Court of Justice in its case-law.

3. The Greek Government contends first that all the Commission's arguments presented in these proceedings are based on assumptions and probabilities, which cannot form the basis for an allegation that there has been an infringement of the law by a Member State.

1 Language of the case: Greek.