Report of the Judge-Rapporteur In Case C-284/91

I — Facts and procedure

1. Legal framework of the main proceedings

Article 1 of Regulation (EEC) No 3330/74 of the Council of 19 December 1974 on the common organization of the market in sugar (OJ 1974 L 359, p. 1), hereinafter Regulation No 3330/74, provides that the common organization of the market in sugar shall comprise a price and trading system ....

Article 15(1) of the regulation provides that:

2. Background to the main proceedings

On 26 September 1978 an export declaration was made on behalf of Suiker Export NV (hereinafter Suiker Export) for 250 tonnes of granulated sugar. Whilst awaiting shipment the sugar had been stored under customs control and a document T 1 (the document used for movement of goods under the procedure for external Community transit) had been drawn up. A sugar export refund was paid to Suiker Export. It subsequently appeared that of that consignment only some 235 tonnes of sugar had left Community territory, the remainder having been stolen after being declared for export.

In the course of the customs rectification procedure the stolen consignment of sugar was declared for import and consumption by means of a customs document 136.

By letter of 19 June 1986, the Centrale Dienst voor Contingenten en Vergunningen (Central Office for Quotas and Licences, hereinafter the Central Office) claimed not only repayment of the export refund relating to the sugar stolen but also the payment of an import levy for the sugar. Suiker Export repaid the export refund without objection, but claims that it is not liable to pay an import levy.

In these circumstances the Rechtbank van Eerste Aanleg te Antwerpen, before which the proceedings between the Central Office and Suiker Export were brought, decided, by order of 25 October 1991, in pursuance of Article 177 of the EEC Treaty, to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

3. Procedure before the Court

The order for reference was lodged at the Court Registry on 7 November 1991.

In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 3 February 1992 by Suiker Export, the defendant in the main proceedings, represented by J. Steenbergen and S. Peten of the Brussels Bar, on 13 February 1992 by the Belgian State, the plaintiff in the main proceedings, represented by E. Vervaeke of the Antwerp Bar, and on 20 February 1992 by the Commission of the European Communities, represented by B. Rodriguez Galindo, of its Legal Department, and L. Tan, acting as Agents.

On hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided, with the agreement of the parties, not to hold any oral procedure and assigned the case to the First Chamber without any preparatory inquiry.

II — Written observations submitted to the Court

The Belgian State, the plaintiff in the main proceedings, states first of all that under Article 15 of Regulation No 3330/74 a levy is to be charged on the importation of sugar. It should be noted that the customs debt (the obligation to pay the import duties) becomes due at the time when the goods subject to the import duties are released for free circulation or are fraudulently imported into the Community or are withdrawn from the customs procedure to which they have been subjected. As regards Community transit under customs procedure, all goods other than those included in the concept of Community goods (T 2) or falling within that concept are regarded as non-Community goods (T 1).

According to the plaintiff, the goods in question had the status of non-Community goods in view of the fact that form T 1 had been drawn up. The sugar in question was therefore not in free circulation within the Community. On the other hand, as soon as the T 1 goods acquired the status of T 2 goods, importation took place.

In this case, according to the plaintiff, from the customs point of view, since the customs agent acting on behalf of Suiker Export made the import declaration so as to comply with the terms of document T 1, importation automatically took place and the customs debt arose.

The plaintiff supports that argument by stating that traders must be conversant with customs technique and accept the consequences resulting therefrom. When they put goods under non-Community status T 1 with a view to exportation, they bear from then on the risk of the consequences which customs formalities, which are necessary to prevent obvious frauds, may involve.

The plaintiff points out that it is consistent case-law that the withdrawal by third parties, and even where there is no fault on the part of the debtor, of goods subject to a customs duty does not extinguish the obligation relating thereto. Theft has no effect on liability for duties, levies or fines.

In the light of those observations, the Belgian State asks the Court of Justice to give an affirmative answer to the question referred to it.

Suiker Export, the defendant in the main proceedings, stresses in the first place the system established by Regulation No 3330/74, setting up a common organization of the market in sugar. The price of sugar applicable in the Community is insulated from that on the world market. To allow of transactions between the Community and the world market, a sluice-gate mechanism was established involving, on the one hand, export refunds intended to offset the difference between the (higher) Community price and the (lower) world market price and, on the other hand, import levies to bring the price of sugar imported from third countries up to the level of the Community price. This system is based on the origin of the goods.

In this case the goods in question were undeniably of domestic origin. It is true that export refunds were paid on them, but they were paid back. This meant that there was a return to the starting point. The idea put forward by the Belgian State, that reimbursement of export refunds and payment of an import levy could be demanded at one and the same time for the same consignment of goods is contrary to the price mechanism set out in the regulation. The defendant accordingly considers that the imposition of an import levy on goods of domestic origin, for which an export refund has not actually been paid, is contrary to the purpose and machinery of the regulation.

As regards the plaintiff's arguments to the effect that the import levy is due on the basis of customs technique for discharging document T 1, the defendant takes the view that such a document may be discharged not only by actually re-importing the goods but equally by the lapsing of exportation which has not taken place. That occurred in this case with the repayment of the refund. The discharge effected by the plaintiff cannot be described as imports within the meaning of Article 15 of the regulation. It is not possible to adopt, for the interpretation of that article, a formalistic point of view of customs technique where that runs counter to the offsetting function of that article in the context of the agricultural policy.

The defendant then explains the practical consequences of the argument put forward by the plaintiff. If the goods had not been stolen the import levy would have increased their price far above the level of the Community price. The leverage effect would apply not to the lower world market price but to the Community price. All goods originating in the Community which are given a transit status and then return to the Community would be put at a disadvantage as compared with goods which had remained in the Community or with goods imported from a third country.

In the light of those observations the defendant suggests that the Court should answer the question referred to it as follows:

The Commission states to begin with that the consignment of sugar, which was of Belgian origin, met the conditions set out in Articles 9 and 10 of the EEC Treaty relating to products in free circulation. It next analyses the system of Community transit established by Council Regulation (EEC) No 222/77 of 13 December 1976 on Community transit (OJ 1977 L 38, p. 1). That regulation makes a distinction between the external and internal Community transit systems. Internal Community transit covers goods which meet the conditions mentioned in Article 9 and 10 of the EEC Treaty, whilst external Community transit covers goods which do not meet those conditions. External transit takes place under a document T 1 or T la and internal transit under a document T 2 or T 2a. The goods are therefore accompanied by a document showing in principle their status as regards Article 9 and 10 of the EEC Treaty.

However, Article l(2)(b) of Regulation No 222/77 involves a derogation from that rule. It provides, in fact, that the system of external transit applies also to transit of goods which, though satisfying the conditions laid down in Articles 9 and 10 of the Treaty establishing the European Economic Community, have been subject to customs export formalities for the grant of refunds for export to third countries pursuant to the common agricultural policy. Until 1973 the internal transit system applied to such goods. The above provision of Regulation No 222/77 was introduced for administrative reasons and to avoid fraudulent practices.

In the Commission's view the mere fact that the Community legislature places transit of these goods under the T 1 system is not a sufficient reason for considering that they are not in free circulation. On the contrary the system applicable to them has no effect on their status with regard to Articles 9 and 10 of the EEC Treaty. As long as these goods have not left the Community customs territory they are not subject either to customs duties or to charges having equivalent effect, which in principle are due for imported non-Community goods.

According to the Commission, it follows that withdrawal of the goods from the surveillance of the customs authorities by reason of a theft does not give rise to a customs debt, since the goods were already in free circulation before being placed under customs supervision. The position would be different with regard to goods not satisfying the conditions of Articles 9 and 10 of the EEC Treaty.

In this case, as there is no question of importation, the Commission's view is that Suiker Export is not liable for the import levy which is the subject of the proceedings.

Regard being had to the foregoing considerations, the Commission proposes that the Court should answer the question referred to it as follows:

1 Language of the case: Dutch.