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

JUDGMENT OF THE COURT (First Chamber)

3 December 1998 (1)

(Free movement of goods - Products in free circulation - Act of Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden - Derogations - Article 99)

In Case C-233/97,

REFERENCE to the Court under Article 177 of the EC Treaty by the Uudenmaan Lääninoikeus (Finland) for a preliminary ruling in the proceedings brought before that court by

KappAhl Oy

on the interpretation of Article 99 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21), as amended by Council Decision 95/1/EC, Euratom, ECSC of 1 January 1995 adjusting the instruments concerning the accession of new Member States to the European Union (OJ 1995 L 1, p. 1),

THE COURT (First Chamber),

composed of: D.A.O. Edward (Rapporteur), acting as President of the Chamber, L. Sevón and M. Wathelet, Judges,

Advocate General: G. Cosmas,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

- KappAhl Oy, by Jan Örndahl and Johanna Kauppinen, lawyers practising in Helsinki,

- the Finnish Government, by Tuula Pynnä, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

- the Commission of the European Communities, by Michel Nolin and Esa Paasivirta, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of KappAhl Oy, the Finnish Government and the Commission at the hearing on 14 May 1998,

after hearing the Opinion of the Advocate General at the sitting on 9 July 1998,

gives the following

Judgment

1. By order of 19 June 1997, received at the Court on 25 June 1997, the Uudenmaan Lääninoikeus (Uusimaa Provincial Administrative Court) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 99 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ 1994 C 241, p. 21), as amended by Council Decision 95/1/EC, Euratom, ECSC of 1 January 1995 adjusting the instruments concerning the accession of new Member States to the European Union (OJ 1995 L 1, p. 1) (hereinafter 'the Act of Accession').

2. That question was raised in proceedings brought by KappAhl Oy, a company incorporated under Finnish law, concerning the levying of certain customs duties on imports of textile and clothing products from Sweden into Finland.

3. Article 2 of the Act of Accession states: 'From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions before accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.'

4. However, Article 10 provides: 'The application of the original Treaties and acts adopted by the institutions shall, as a transitional measure, be subject to the derogations provided for in this Act.'

5. According to Article 99 of the Act of Accession,

   'The Republic of Finland may maintain, for a period of three years after accession, its customs tariff applicable to third countries for the products referred to in Annex XI.

   During this period, the Republic of Finland shall reduce the difference between its basic duty and the duty in the Common Customs Tariff in accordance with the following timetable:

   - on 1 January 1996, each difference between the basic duty and the CCT duty shall be reduced to 75%;

   - on 1 January 1997, each difference between the basic duty and the CCT duty shall be reduced to 40%.

   The Republic of Finland shall apply in full the Common Customs Tariff from 1 January 1998.'

6. Under Paragraph 1(2) of the Finnish Laki eräistä väliaikaisista tulleista (Law on certain temporary customs duties, 1255/94, hereinafter 'the national law'), duty is charged on goods from a non-member country which have been released into free circulation in another Member State - on which duty has consequently already been charged on entry to the customs territory of the Community under Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) - at the rate of the difference between the customs duty specified in the schedule to the national law and the duty levied on importation into the Community.

7. Between 29 March 1995 and 26 June 1996 KappAhl imported into Finland from Sweden textile and clothing products originating in non-member countries.

8. On their importation into Sweden, Community customs duties due under Regulation No 2658/87 were paid, and the products were thus in free circulation in that Member State.

9. On their importation into Finland, KappAhl also had to pay Finnish customs duties amounting to FMK 6 911 586, pursuant to 1 056 decisions adopted by the Lahden Tullikamari (Lahti Customs Office) on the basis of Paragraph 1(2) of the national law.

10. Since it considered that those decisions were contrary to Articles 9, 12 and 13 of the EC Treaty, KappAhl brought proceedings in the national court for annulment of the decisions and reimbursement of the sums paid pursuant to those decisions, with interest at the prescribed rate. KappAhl submits that Article 99 of the Act of Accession did not allow the Republic of Finland to levy customs duties on the import of goods which were already in free circulation in the Community.

11. The Finnish authorities, on the other hand, submit that the wording of Article 99 is ambiguous. In their view, it is possible to regard that provision as applying both to goods imported directly from non-member countries and also to goods which are imported from another Member State but originate in those countries.

12. On this point, the national court observes that in December 1995 the Commission informed the Finnish authorities that in its opinion Article 99 of the Act of Accession did not permit a derogation from the principle of free movement of goods such as that in Paragraph 1(2) of the national law. The Finnish authorities disagreed, but explained that for practical reasons the provision in question would be repealed as from 1 July 1996.

13. In those circumstances, since it was uncertain how Article 99 of the Act of Accession should be interpreted, the national court stayed the proceedings and referred the following question to the Court for a preliminary ruling:

    'Is Article 99 of the Act of Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden to be interpreted as referring also to goods originating in non-member countries which have been in free circulation in another Member State of the European Community and are imported from there into Finland?'

14. By that question the national court essentially asks whether Article 99 of the Act of Accession is to be interpreted as having permitted the Republic of Finland to levy, for a period of three years from its accession to the Community on 1 January 1995, customs duties on imports of products which were already in free circulation in another Member State.

15. It follows from Articles 2 and 10 of the Act of Accession that it is based on the principle that the provisions of Community law apply ab initio and in toto to new Member States, derogations being allowed only in so far as they are expressly laid down by transitional provisions (see, mutatis mutandis, Case 258/81 Metallurgiki Halyps v Commission [1982] ECR 4261, paragraph 8).

16. Consequently, subject to the application of Article 99 of the Act of Accession, the Treaty provisions on free movement of goods, in particular Articles 9 and 10 thereof, have been fully applicable in Finland since its accession to the Community.

17. It follows that if Article 99 of the Act of Accession did not authorise the maintenance of customs duties such as those at issue in the main proceedings, it would be contrary to Article 9 of the Treaty to levy them, in so far as they relate to products which, under Article 10(1) of the Treaty, are definitively and wholly assimilated to products originating in the Member States (Case 41/76 Criel née Donckerwolcke and Schou v Procureur de la République and Director General of Customs [1976] ECR 1921, paragraph 17).

18. Article 99 of the Act of Accession constitutes a derogation from the Treaty rules on free movement of goods and must therefore be interpreted restrictively (see, to that effect, Case 77/82 Peskeloglou v Bundesanstalt für Arbeit [1983] ECR 1085, paragraph 12). Moreover, the derogations permitted by the Act of Accession from the rules laid down by the Treaty must be interpreted in such a way as to facilitate achievement of the objectives of the Treaty and application in full of its rules (Joined Cases 194/85 and 241/85 Commission v Greece [1988] ECR 1037, paragraph 20).

19. The wording of Article 99 of the Act of Accession shows that that provision constitutes a temporary derogation from the application in full of the Common Customs Tariff in trade between the Republic of Finland and non-member countries as regards the products referred to in Annex XI to the Act of Accession. That provision does not, however, provide for any derogation from the principle of free movement of goods between Member States, whether in relation to products originating in the Member States or to products assimilated thereto.

20. That literal interpretation of Article 99 of the Act of Accession is also that which best fulfils the objectives of the Treaty, in that it entails a more complete application of its rules than that which follows from the Finnish Government's interpretation, namely that the provision applies also to products which are in free circulation in the Community.

21. The fact that during the transitional period traders were able to avoid paying the Finnish customs duties by routing via another Member State products originating in a non-member country and intended for Finland cannot justify a broader interpretation of the provision. Given the importance of the principle of free movement of goods between Member States, a derogation, even if temporary, must be granted clearly and unambiguously.

22. Finally, the Finnish Government submits that the interpretation according to which Article 99 of the Act of Accession applies to products in free circulation in the Community is borne out by individual positions adopted and a joint declaration made by the Member States in the course of the negotiations which led to the adoption of the Act of Accession.

23. On this point, it need only be observed that neither individual statements of position nor joint declarations of the Member States may be used for the purpose of interpreting a provision where, as in the present case, their content is not reflected in its wording and therefore has no legal significance (see, to that effect, Joined Cases C-197/94 and C-252/94 Bautiaa and Société Française Maritime v Directeur des Services Fiscaux [1996] ECR I-505, paragraph 51; Case C-292/89 R v Immigration Appeal Tribunal ex parte Antonissen [1991] ECR I-745, paragraph 18; and Case 143/83 Commission v Denmark [1985] ECR 427, paragraph 13).

24. The answer to the question must therefore be that Article 99 of the Act of Accession is to be interpreted as not having permitted the Republic of Finland to levy, for a period of three years from its accession to the Community on 1 January 1995, customs duties on imports of products which had already been released into free circulation in another Member State.

    Costs

25. The costs incurred by the Finnish Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by the Uudenmaan Lääninoikeus by order of 19 June 1997, hereby rules:

Article 99 of the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, as amended by Council Decision 95/1/EC, Euratom, ECSC of 1 January 1995 adjusting the instruments concerning the accession of new Member States to the European Union, is to be interpreted as not having permitted the Republic of Finland to levy, for a period of three years from its accession to the Community on 1 January 1995, customs duties on imports of products which had already been released into free circulation in another Member State.

Edward Sevón Wathelet

Delivered in open court in Luxembourg on 3 December 1998.

R. Grass P. Jann

Registrar President of the First Chamber

---

1: Language of the case: Finnish.