Court of Justice of the European Communities (including Court of First Instance Decisions)

COMMON CUSTOMS TARIFF - GENERALIZED PREFERENCE SCHEME IN FAVOUR OF DEVELOPING COUNTRIES - SUSPENSION OF CUSTOMS DUTIES UP TO A CERTAIN CEILING - CERTIFICATE OF ORIGIN OF GOODS - PRODUCTION AFTER RE-INTRODUCTION OF CUSTOMS DUTIES - NO ENTITLEMENT TO EXEMPTION
( COUNCIL REGULATION NO 2789/79 , ART . 1 ( 3 ) AND ART . 3 ( 1 ) AND ( 2 ))

IT FOLLOWS FROM ALL THE PROVISIONS OF REGULATION NO 2789/79 OPENING PREFERENTIAL TARIFFS FOR CERTAIN PRODUCTS ORIGINATING IN DEVELOPING COUNTRIES , ESPECIALLY ARTICLES 1 ( 3 ) AND 3 ( 1 ) AND ( 2 ) THEREOF , THAT PRODUCTION OF THE CERTIFICATE OF ORIGIN OF THE PRODUCTS IN QUESTION IS NECESSARY FOR THE GOODS TO BE CHARGED AGAINST THE CEILING ON IMPORTS WHICH ENJOY SUSPENSION OF CUSTOMS DUTIES DETERMINED PURSUANT TO ARTICLE 1 ( 3 ) AND THAT THE GOODS MUST BE CHARGED AGAINST THE CEILING IN ORDER TO OBTAIN EXEMPTION FROM DUTIES .

ACCORDINGLY , THE SUSPENSION OF CUSTOMS DUTIES PROVIDED FOR IN THE REGULATION MAY NOT BE APPLIED TO GOODS IMPORTED AND ENTERED FOR FREE CIRCULATION BEFORE THE RE-INTRODUCTION OF CUSTOMS DUTIES IF THE CERTIFICATE OF ORIGIN IS PRODUCED AFTER THE RE-INTRODUCTION HAS COME INTO EFFECT .

IN CASE 321/82
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE FINANZGERICHT ( FINANCE COURT ) HAMBURG FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
VOLKSWAGENWERK AG , WOLFSBURG ,
AND
HAUPTZOLLAMT ( PRINCIPAL CUSTOMS OFFICE ) BRAUNSCHWEIG ,

ON THE INTERPRETATION OF COUNCIL REGULATIONS RELATING TO THE APPLICATION OF PREFERENTIAL TARIFFS GRANTED BY THE COMMUNITY IN RESPECT OF CERTAIN PRODUCTS ORIGINATING IN DEVELOPING COUNTRIES ,

1 BY AN ORDER OF 29 OCTOBER 1982 , RECEIVED AT THE COURT ON 16 DECEMBER 1982 , THE FINANZGERICHT ( FINANCE COURT ) HAMBURG REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 17 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF COUNCIL REGULATION NO 2789/79 OF 10 DECEMBER 1979 OPENING PREFERENTIAL TARIFFS FOR CERTAIN PRODUCTS ORIGINATING IN DEVELOPING COUNTRIES ( OFFICIAL JOURNAL , L 328 , P . 25 ) AND COMMISSION REGULATION NO 3067/79 OF 20 DECEMBER 1979 ON THE DEFINITION OF THE CONCEPT OF ORIGINATING PRODUCTS FOR PURPOSES OF THE APPLICATION OF TARIFF PREFERENCES GRANTED BY THE EUROPEAN ECONOMIC COMMUNITY IN RESPECT OF CERTAIN PRODUCTS FROM DEVELOPING COUNTRIES ( OFFICIAL JOURNAL , L 349 , P . 1 ).

2 THE QUESTION WAS RAISED IN PROCEEDINGS BETWEEN VOLKSWAGENWERK AG AND THE HAUPTZOLLAMT BRAUNSCHWEIG IN RELATION TO THE IMPORT OF CONSIGNMENTS OF ACCUMULATORS FROM YUGOSLAVIA , THE LEVYING THEREON OF CUSTOMS DUTIES AND THE IMPORTER ' S CLAIM TO EXEMPTION FROM CUSTOMS DUTIES UNDER REGULATION NO 2789/79 .
3 REGULATION NO 2789/79 PROVIDES FOR THE COMPLETE SUSPENSION OF COMMON CUSTOMS TARIFF DUTIES ON PRODUCTS LISTED IN ANNEX A TO THE REGULATION , WHICH INCLUDE ACCUMULATORS , ORIGINATING FROM THE COUNTRIES AND TERRITORIES LISTED IN ANNEX B , WHICH INCLUDE YUGOSLAVIA . THE SUSPENSION APPLIED FROM 1 JANUARY TO 31 DECEMBER 1980 ; HOWEVER IT WAS GRANTED FOR THE MAJORITY OF PRODUCTS CONCERNED ONLY UP TO A CEILING DETERMINED BY ARTICLE 1 ( 3 ) OF THE REGULATION . AS SOON AS THE CEILING FIXED FOR A PARTICULAR PRODUCT IS REACHED THE COMMISSION MAY RE-INTRODUCE THE LEVYING OF CUSTOMS DUTIES .

4 IN ORDER TO DETERMINE WHEN THE CEILING IS REACHED ARTICLE 3 ( 1 ) OF REGULATION NO 2789/79 PROVIDES THAT ' ' IMPORTS OF THE PRODUCTS IN QUESTION SHALL BE CHARGED AGAINST THE . . . CEILINGS . . . AS AND WHEN THE PRODUCTS ARE ENTERED FOR FREE CIRCULATION , . . . AND PROVIDED THAT THEY ARE ACCOMPANIED BY A CERTIFICATE OF ORIGIN ' ' . ARTICLE 3 ( 2 ) PROVIDES THAT ' ' GOODS MAY BE CHARGED AGAINST A CEILING . . . ONLY IF THE CERTIFICATE OF ORIGIN . . . IS SUBMITTED BEFORE THE DATE ON WHICH THE LEVYING OF DUTIES IS RE-INTRODUCED ' ' .

5 THE CONSIGNMENTS OF ACCUMULATORS WHICH ARE THE SUBJECT OF THE PROCEEDINGS IN THE MAIN ACTION WERE DECLARED FOR IMPORT AND PUT INTO FREE CIRCULATION UNDER THE GERMAN CUSTOMS LEGISLATION IN FEBRUARY 1980 . THE RELEVANT CERTIFICATES OF ORIGIN WERE NOT SUBMITTED UNTIL APRIL 1980 , HOWEVER . IN THE MEANTIME THE LEVYING OF CUSTOMS DUTIES HAD BEEN RE-INTRODUCED FROM 8 MARCH 1980 BY COMMISSION REGULATION NO 545/80 OF 3 MARCH 1980 ( OFFICIAL JOURNAL , L 60 , P . 14 ).

6 SINCE THE IMPORTER MAINTAINED THAT THE MOMENT WHEN THE GOODS WERE PUT INTO FREE CIRCULATION MUST BE REGARDED AS DECISIVE IN APPLYING SUSPENSION AND , MOREOVER , THE CERTIFICATES OF ORIGIN WERE VALID FOR 10 MONTHS PURSUANT TO ARTICLE 7 OF REGULATION NO 3067/79 , THE NATIONAL COURT DECIDED TO REFER THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' ' MUST COUNCIL REGULATION ( EEC ) NO 2789/79 , ESPECIALLY ARTICLES 2 AND 3 THEREOF , READ IN CONJUNCTION WITH COMMISSION REGULATION ( EEC ) NO 3067/79 , ESPECIALLY ARTICLES 7 AND 11 THEREOF , BE CONSTRUED AS MEANING THAT THE CERTIFICATE OF ORIGIN MAY NO LONGER BE VALIDLY PRODUCED AFTER THE CUSTOMS DUTY HAS BEEN RE-INTRODUCED?
' '
7 IN ITS JUDGMENT OF 10 JUNE 1982 IN CASE 231/81 ( HAUPTZOLLAMT WURZBURG V WEIDENMANN ( 1982 ) ECR 2259 ) THE COURT STATED THAT THE SUSPENSION OF CUSTOMS DUTIES UNDER THE SYSTEM OF TARIFF PREFERENCES IN FAVOUR OF DEVELOPING COUNTRIES MAY APPLY TO GOODS IMPORTED , PRESENTED AND ENTERED FOR HOME USE DURING THE CALENDAR YEAR IN WHICH SUSPENSION APPLIES EVEN THOUGH THE CERTIFICATE OF ORIGIN IS PRODUCED AFTER THE REGULATION SUSPENDING THE DUTIES HAS CEASED TO APPLY , PROVIDED THAT THE CERTIFICATE IS VALID AND , THAT IT IS PRODUCED IN ACCORDANCE WITH THE CONDITIONS LAID DOWN BY THE RELEVANT RULES .

8 IT MUST BE EMPHASIZED THAT THE AFORESAID JUDGMENT DEALS ONLY WITH THE SITUATION WHERE THE LEVYING OF DUTIES HAS NOT BEEN RE-INTRODUCED AND WHERE THE LATE PRODUCTION OF THE CERTIFICATE OF ORIGIN CANNOT CAUSE THE CEILING ESTABLISHED FOR THE GOODS IN QUESTION TO BE EXCEEDED SINCE THE PERIOD OF SUSPENSION OF DUTIES HAS BEEN EXTENDED . THAT IS WHY THE JUDGMENT STATES THAT IF THE COMMISSION HAS NOT RE-INTRODUCED THE DUTIES IN THE CALENDAR YEAR IN QUESTION LATE PRODUCTION OF THE CERTIFICATE IN THE EARLY MONTHS OF THE FOLLOWING YEAR CANNOT , ANY MORE THAN LATE PRODUCTION IN THE SAME YEAR , PREJUDICE THE EFFECTIVENESS OF THE REGULATION PROVIDING FOR SUSPENSION .

9 THE COMMISSION MAINTAINS THAT THE PROBLEM WITH WHICH THE PRESENT PROCEEDINGS ARE CONCERNED REQUIRES A DIFFERENT ANSWER . WHERE DUTIES HAVE BEEN RE-INTRODUCED IN THE INTERVAL BETWEEN THE PUTTING INTO FREE CIRCULATION AND THE PRODUCTION OF THE CERTIFICATE OF ORIGIN , THE GOODS CAN NO LONGER BE CHARGED AGAINST THE CEILING . IN THE COMMISSION ' S VIEW WHERE GOODS CAN NO LONGER BE CHARGED AGAINST THE CEILING THEY CAN NO LONGER ENJOY THE CUSTOMS EXEMPTION IN QUESTION .

10 THE COURT SHARES THE VIEW EXPRESSED BY THE COMMISSION . IT IS APPARENT FROM THE PROVISIONS OF REGULATION NO 2789/79 THAT SUSPENSION CAN BE GRANTED ONLY UNTIL THE CEILING IS REACHED ( ARTICLE 1 ( 3 )), THAT THE GOODS ARE CHARGED AGAINST SUCH A CEILING AS AND WHEN THE DECLARATION IN RESPECT OF FREE CIRCULATION AND THE CERTIFICATE OF ORIGIN ARE BOTH LODGED ( ARTICLE 3 ( 1 )) AND THAT THE GOODS MAY BE CHARGED AGAINST A CEILING ONLY IF THE CERTIFICATE OF ORIGIN IS SUBMITTED BEFORE THE DATE ON WHICH THE DUTIES ARE RE-INTRODUCED ( ARTICLE 3 ( 2 )). IT FOLLOWS FROM THOSE PROVISIONS TAKEN TOGETHER THAT PRODUCTION OF THE CERTIFICATE IS NECESSARY FOR THE GOODS TO BE CHARGED AGAINST THE CEILING AND THE GOODS MUST BE CHARGED AGAINST THE CEILING IN ORDER TO OBTAIN EXEMPTION FROM DUTIES .

11 IT IS THUS APPARENT THAT THE EXEMPTION FROM CUSTOMS DUTIES PROVIDED FOR BY REGULATION NO 2789/79 IS EXCLUDED WHEN THE CERTIFICATE OF ORIGIN OF THE GOODS IMPORTED INTO THE COMMUNITY IS PRODUCED AFTER THE CUSTOMS DUTIES FOR SUCH GOODS HAVE BEEN RE-INTRODUCED .

12 THAT INTERPRETATION IS SUPPORTED BY PRACTICAL CONSIDERATIONS . THE EFFICIENT MANAGEMENT OF THE CEILINGS ALLOWED IN RELATION TO CUSTOMS EXEMPTION FOR DEVELOPING COUNTRIES AND TERRITORIES WOULD BE MADE EXTREMELY DIFFICULT IF AFTER DUTIES WERE RE-INTRODUCED GOODS WHOSE CERTIFICATES OF ORIGIN WERE PRODUCED LATE MIGHT STILL ENJOY RETROACTIVE EXEMPTION .

13 ARTICLES 7 AND 11 OF REGULATION NO 3067/79 , TO WHICH THE NATIONAL COURT REFERS , ARE NO OBSTACLE TO SUCH INTERPRETATION . THOSE PROVISIONS RELATE TO THE DURATION OF THE VALIDITY OF CERTIFICATES OF ORIGIN FROM THE DATE OF THEIR ISSUE BY THE COMPETENT AUTHORITY IN THE EXPORTING COUNTRY AND TO CERTAIN CASES WHERE A CERTIFICATE MAY BE VALIDLY PRODUCED AFTER THE TIME-LIMIT HAS EXPIRED ; THUS THEY DO NOT CONCERN THE QUESTION OF THE EFFECT OF THE RE-INTRODUCTION OF DUTIES ON THE RIGHT TO EXEMPTION WHERE THE CERTIFICATE HAS NOT YET BEEN PRODUCED WHEN THE RE-INTRODUCTION TAKES EFFECT .

14 IN THE CIRCUMSTANCES THE QUESTION PUT BY THE FINANZGERICHT HAMBURG MUST BE ANSWERED TO THE EFFECT THAT ARTICLE 3 OF REGULATION NO 2789/79 MUST BE INTERPRETED AS MEANING THAT THE SUSPENSION OF CUSTOMS DUTIES PROVIDED FOR THEREBY MAY NOT BE APPLIED TO GOODS IMPORTED AND ENTERED FOR FREE CIRCULATION BEFORE THE RE-INTRODUCTION OF CUSTOMS DUTIES IF THE CERTIFICATE OF ORIGIN IS PRODUCED AFTER THE RE-INTRODUCTION HAS COME INTO EFFECT .

COSTS
15 THE COSTS INCURRED BY THE COMMISSION , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , AS FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE DECISION AS TO COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
IN ANSWER TO THE QUESTION REFERRED TO IT BY THE FINANZGERICHT HAMBURG BY ORDER OF 29 OCTOBER 1982 , HEREBY RULES :
THE SUSPENSION OF CUSTOMS DUTIES PROVIDED FOR IN REGULATION NO 2789/79 MAY NOT BE APPLIED TO GOODS IMPORTED AND ENTERED FOR FREE CIRCULATION BEFORE THE RE-INTRODUCTION OF CUSTOMS DUTIES IF THE CERTIFICATE OF ORIGIN IS PRODUCED AFTER THE RE-INTRODUCTION HAS COME INTO EFFECT .