Avis juridique important

61998J0230

European Court reports 2000 Page I-03547

Summary

Common commercial policy - Trade with non-member countries - Regime applying to imports into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro - Imports into the Community of baby-beef originating in the former Yugoslav Republic of Macedonia - Certificates of origin issued by the body formerly authorised to do so, a new competent body not yet having been designated - Exclusion from the benefit of the arrangements for reductions in import levies (Council Regulation No 545/92; Commission Regulation No 859/92)

Article 7 of Council Regulation No 545/92 concerning the arrangements applicable to the import into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro and Commission Regulation No 859/92 laying down detailed rules governing imports of baby-beef originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro must be interpreted as meaning that the importation into the Community in September and October 1992 of consignments of baby-beef originating in and coming from the former Yugoslav Republic of Macedonia with certificates of origin issued by the Yugoslav body which was the competent authority prior to the denunciation by the Community of the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was not capable of benefiting from the arrangements for reduced import levies provided for in Article 7 of Regulation No 545/92, even though a new competent body had not been designated for the former Yugoslav Republic of Macedonia at the time the import operations took place.

( see para. 56 and operative part )

Parties

In Case C-230/98,

REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Tribunale Civile e Penale di Treviso, Italy, for a preliminary ruling in the proceedings pending before that court between

Schiavon Silvano, an insolvent firm,

on the interpretation of Council Regulation (EEC) No 545/92 of 3 February 1992 concerning the arrangements applicable to the import into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro (OJ 1992 L 63, p. 1) and Commission Regulation (EEC) No 859/92 of 3 April 1992 laying down detailed rules governing imports of baby-beef originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro (OJ 1992 L 89, p. 26),

THE COURT (Second Chamber),

composed of: R. Schintgen (Rapporteur), President of the Chamber, G. Hirsch and V. Skouris, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

Registrar: R. Grass,

after considering the written observations submitted on behalf of:

- the Italian Government, by U. Leanza, Head of the Legal Department in the Ministry of Foreign Affairs, acting as Agent, assisted by I.M. Braguglia, Avvocato dello Stato,

- the Commission of the European Communities, by P. Stancanelli, of its Legal Service, acting as Agent,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 13 January 2000,

gives the following

1 By order of 10 June 1998, received at the Registry on 30 June 1998, the Tribunale Civile e Penale (Civil and Criminal District Court), Treviso, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) two questions on the interpretation of Council Regulation (EEC) No 545/92 of 3 February 1992 concerning the arrangements applicable to the import into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro (OJ 1992 L 63, p. 1) and Commission Regulation (EEC) No 859/92 of 3 April 1992 laying down detailed rules governing imports of baby-beef originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro (OJ 1992 L 89, p. 26).

2 The questions have been raised in proceedings between the Amministrazione delle Finanze dello Stato (the State Finance Administration, hereinafter the Amministrazione) and the insolvent Italian undertaking Schiavon Silvano (Schiavon), represented by its liquidator, concerning imports into the Community of baby-beef originating in and imported from the former Yugoslav Republic of Macedonia.

The relevant legislation

3 The Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia (the EEC-Yugoslavia Cooperation Agreement) was signed on 2 April 1980 in Belgrade by, first, the Member States of the European Economic Community and the Community, and, second, by the Socialist Federal Republic of Yugoslavia (Yugoslavia) and was approved on behalf of the Community by Council Regulation (EEC) No 314/83 of 24 January 1983 (OJ 1983 L 41, p. 1).

4 In relation to trade, Article 24 of the EEC-Yugoslavia Cooperation Agreement, as amended by Article 5 of the Additional Protocol establishing new trade arrangements (the Additional Protocol) approved on behalf of the Community by Council Decision 87/605/EEC of 21 December 1987 (OJ 1987 L 389, p. 72), laid down preferential tariff arrangements for imports into the Community of baby-beef products originating in Yugoslavia.

5 That preferential treatment was conditional upon presentation of a certificate of origin, the form of which, together with detailed rules relating to the issue and use of certificates, were laid down in Commission Regulation (EEC) No 1368/88 of 18 May 1988 specifying the conditions for the inclusion of certain live animals of the domestic bovine species and certain meat of the bovine species within the CN codes listed in Annex E to the Additional Protocol to the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia establishing new trade arrangements (OJ 1988 L 126, p. 26).

6 By virtue of Annex II to that Regulation, the Yugoslav authority with power to issue the certificate of origin was the Savezni Trzisni Inspektorat Beograd.

7 Following armed conflicts between the various territorial entities within the Yugoslav Federation, the Council and the representatives of the Governments of the Member States meeting within the Council suspended with immediate effect, by Decision 91/586/ECSC, EEC of 11 November 1991 suspending the application of the Agreements between the European Community, its Member States and the Socialist Federal Republic of Yugoslavia (OJ 1991 L 315, p. 47), the application of the EEC-Yugoslavia Cooperation Agreement and the Additional Protocol.

8 On the same day, the Council adopted Council Regulation (EEC) No 3300/91 of 11 November 1991 suspending the trade concessions provided for by the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia (OJ 1991 L 315, p. 1).

9 Next, the Council adopted Decision 91/602/EEC of 25 November 1991 denouncing the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia (OJ 1991 L 325, p. 23). By virtue of Article 1 of the Decision, the denunciation applied to the protocols related to the EEC-Yugoslavia Cooperation Agreement, including, therefore, the Additional Protocol.

10 Council Regulation (EEC) No 3567/91 of 2 December 1991 concerning the arrangements applicable to the import of products originating in the Republics of Bosnia-Herzegovenia, Croatia, Macedonia and Slovenia (OJ 1991 L 342, p. 1) provided that those republics were to benefit from trading arrangements corresponding essentially to those under the EEC-Yugoslavia Cooperation Agreement, but only in respect of certain products, not including baby-beef products.

11 Under Regulation No 545/92 those measures were retained for the year 1992 and were extended to certain agricultural products, including bovine meat of the baby-beef variety.

12 Article 1 of Regulation No 545/92 establishes the principle that, subject to the special provisions laid down in Articles 2 to 8 of the Regulation, products other than those listed in Annex II to the EC Treaty and Annex A to Regulation No 545/92, originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzogovina, Macedonia and Montenegro, are to be admitted for import into the Community without quantitative restrictions or measures having equivalent effect and exempt from customs duties and charges having equivalent effect.

13 The rules relating to the preferential treatment of imports of baby-beef products are set out in Article 7 of Regulation No 545/92, which reads as follows:

The following provisions shall apply to "baby-beef" products defined in Annex E to this Regulation:

14 Under Article 10 of Regulation No 545/92:

The detailed rules for implementing the agricultural provisions referred to in this Regulation shall be drawn up by the Commission.

15 The second paragraph of Article 12 of the Regulation provides that it is to be applicable from 1 January 1992 to 31 December 1992.

16 Regulation No 545/92, in particular Article 10 thereof, formed the basis for Commission Regulation No 859/92.

17 Article 1 of Regulation No 859/92 provides:

18 Article 2 of Regulation No 859/92 is worded as follows:

At the request of the parties concerned and on presentation of proof that products released for free circulation in the Member States in the period 1 January to 5 April 1992 were accompanied by certificates as provided for in Article 1(2) endorsed either by a body listed in Annex I or by the body in Annex II hereto, the Member States shall reimburse the difference between the levies set out in column 2 and 4 of Regulation (EEC) No 853/92 provided the place of issue of the aforementioned lies within the geographical territory of a republic mentioned in Article 1 of Regulation (EEC) No 545/92.

19 Annex I to Regulation No 859/92 lists as issuing bodies of certificates of origin

- Republic of Croatia: "Euroinspekt", Zagreb, Croatia;

- Republic of Slovenia: "Inspect", Ljubljana, Slovenia.

20 Annex II to the Regulation gives as issuing agency: "Savezni Trzisni Inspektorat", Beograd.

21 In accordance with the first paragraph of Article 3, Regulation No 859/92 came into force on 6 April 1992.

22 Regulation No 859/92 did not, therefore, prescribe an issuing agency in respect of the former Yugoslav Republic of Macedonia. Such an agency was only designated by Commission Regulation (EEC) No 185/93 of 29 January 1993 laying down detailed rules governing imports of certain beef and veal products originating in the Republics of Bosnia-Herzegovina, Croatia and Slovenia and the former Yugoslav Republic of Macedonia (OJ 1993 L 22, p. 70), which came into force on 1 February 1993 and the Annex to which refers to "Cargoinspect", Skopje as the issuing agency in the former Yugoslav Republic of Macedonia.

The main proceedings

23 It is apparent from the order for reference that on 28 September, 6 October and 19 October 1992, Schiavon carried out three import operations bringing baby-beef originating in and coming from the former Yugoslav Republic of Macedonia into the Community under the arrangements by which import levies and value added tax were suspended. The total value of the imports was ITL 179 903 600 (the disputed imports).

24 With a view to taking advantage of the preferential arrangements, Schiavon submitted certificates of origin which accorded with the specimen in Annex I to Regulation No 1368/88 and which were issued by the Savezni Trzisni Inspektorat, Beograd, the issuing body designated in Annex II to that Regulation.

25 The Amministrazione took the view that the certificates issued by that body did not enable the products in question to be eligible for the preferential trading treatment provided for in the Community legislation applying at the time of the events and asked Schiavon to pay a total of ITL 233 971 480 by way of import levies and value added tax, plus interest.

26 After a sum of ITL 150 000 000 had been paid by the insurance company covering the risks involved in the transaction, the Amministrazione claimed the balance due from Schiavon, namely ITL 83 971 480.

27By decision of the Tribunale Civile e Penale di Treviso of 5 October 1995, Schiavon was declared insolvent.

28The Amministrazione then applied to the Tribunale to add the sum of ITL 83 971 480 to Schiavon's liabilities on insolvency as a preferential debt.

29Schiavon objects to this application on the grounds that, since the disputed imports were governed by Regulations Nos 545/92 and 859/92 and since Regulation No 859/92 did not include for the former Yugoslav Republic of Macedonia a body authorised to issue certificates of origin for imported beef and veal, the Savezni Trzisni Inspektorat, Beograd, the competent body in the past, should be deemed to have continued to be the body authorised to issue the relevant certificates for imports coming from the former Yugoslav Republic of Macedonia until such time as a competent body was designated for that country, which only occurred in 1993. In those circumstances, the beef constituting the disputed imports should be eligible for the preferential treatment provided for in Community legislation.

30The Amministrazione maintains, by contrast, that the preferential treatment for imports laid down by Regulation No 545/92 was conditional on the issue of certificates of origin by the body recognised by the Community as competent, that, in the present case, the body which issued the certificates was not included among those designated by Regulation No 859/92, which was in force at the time of the disputed imports, and that, consequently, those certificates had to be regarded as inadequate, with the result that the disputed imports were subject to all levies and charges.

31The Tribunale takes the view that the outcome of the proceedings depends essentially on knowing whether Regulation No 545/92 must be interpreted as meaning that, in the absence of any designation of a new issuing agency, the authorisation of the body which was previously competent must be deemed to be extended or if, on the contrary, the list of agencies in Annex I to Regulation No 859/92 is exhaustive and therefore prevents any authority which is not expressly referred to from being taken into account.

32In those circumstances the Tribunale Civile e Penale di Treviso decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

1.Must Article 1 of Council Regulation No 545/92 be regarded as immediately conferring upon Community citizens a subjective right to relief from duty and tax on imports, with the result that, in the absence of any indication of the authority empowered to issue certificates of origin in the case of certain former Yugoslav Republics, that right continues to exist even where a certificate has been issued by the body previously authorised, until such time as the new body is designated?

2.Or, on the contrary, is the list in Annex I to Commission Regulation No 859/92 exhaustive and does it deprive the Savezni Trzisni Inspektorat of any authority to issue certificates?

33First, it should be noted that, although the first question refers to Article 1 of Regulation No 545/92, it is apparent from the reasoning in the order for reference that the main proceedings arose in the context of imports into the Community of baby-beef originating in and coming from the former Yugoslav Republic of Macedonia.

34In that respect, it must be noted that the application of Article 1 of Regulation No 545/92, which lays down the principle that the products to which it applies may be imported into the Community without any quantitative restrictions or measures having equivalent effect and exempt from customs duties and any charges having equivalent effect, is expressly subject to the special provisions laid down in Articles 2 to 8 of the Regulation.

35Article 7 of Regulation No 545/92 specifically lays down the system of preferential trading arrangements applying to imports into the Community of baby-beef products within the meaning of the Regulation.

36Consequently, the relevant provision in the present case is Article 7, since it is not in dispute that the products constituting the disputed imports fall within the category of baby-beef products defined in Annex E to Regulation No 545/92.

37In order to provide a satisfactory answer for a national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (Case C-315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10).

38Therefore, the questions referred to the Court, taken together, must be understood as seeking essentially to ascertain whether Article 7 of Regulation No 545/92, and Regulation No 859/92, must be interpreted as meaning that the importation into the Community in September and October 1992 of consignments of baby-beef originating in and coming from the former Yugoslav Republic of Macedonia with certificates of origin issued by the Yugoslav body which was the competent authority prior to the denunciation by the Community of the EEC-Yugoslavia Cooperation Agreement was capable of benefiting from the arrangements for reduced import levies laid down in Article 7 of Regulation No 545/92 until such time as a new competent body was designated for the former Yugoslav Republic of Macedonia.

39Although Article 7 of Regulation No 545/92 establishes and regulates the right to a reduction in the amount of levy collected on imports into the Community of baby-beef products, the right is not conferred automatically on traders affected by the provision, as the Italian Government and the Commission have correctly pointed out in their written observations and as the Advocate General has further explained in paragraphs 22 to 25 of his Opinion.

40On the contrary, as is evident from the wording of Article 7 of Regulation No 545/92, whether the right may be enjoyed depends on different conditions, some of which are dependent on objective data related to the Community's internal market and which traders cannot influence, since reductions in the levy collected on imports apply within the limits of fixed annual quotas, the volume of which is, in part, subject to certain price fluctuations on the Community market. In addition, Article 7 makes the Commission responsible for ensuring that the arrangements for reduced levies on imports are properly managed and monitored and provides that, for these purposes, various implementing measures are to be adopted in respect of which the Commission enjoys a certain amount of discretion.

41Accordingly, Schiavon cannot claim to be entitled to benefit from the arrangements laid down in Article 7 of Regulation No 545/92 unless the disputed imports fulfilled all the conditions laid down by the Community rules and unless, in particular, the issuing body which approved the certificates of origin accompanying the products constituting the relevant imports was the competent authority at the time the import operations took place.

42In this respect, it is important to draw attention to the fact that, first, the effect of paragraphs 1 and 4 of Article 1 of Regulation No 859/92 is that, subject to the concession in Article 2 of that regulation, the reduction in import levies under Article 7 of Regulation No 545/92 applies only to baby-beef products accompanied by a certificate of origin, which is valid only if endorsed by an issuing agency listed in Annex I to Regulation No 859/92.

43Second, it should be noted that the only authorities appearing on the list are the Croatian body and the Slovene body. By contrast, no issuing agency is given in respect of the former Yugoslav Republic of Macedonia.

44In addition, the issuing agency for the former Yugoslav Republic of Macedonia was only designated, in the form of Cargoinspect, Skopje, in the Annex to Regulation No 185/93, which, pursuant to Article 3 of that Regulation, came into force on 1 February 1993.

45Finally, it is plain that Article 2 of Regulation No 859/92 provides that only products released for free circulation in the Member States during the period 1 January 1992 to 6 April 1992 may continue to be accompanied by a certificate endorsed by the Savezni Trzisni Inspektorat, Beograd, provided nevertheless that the place of issue of the certificate lies within the geographical territory of one of the former Yugoslav Republics falling within the scope of the relevant regulation.

46The Commission has argued cogently that this special provision has the sole aim of enabling the arrangements for reductions in the import levy on baby-beef to apply with effect from 1 January 1992, the date from which Regulation No 545/92 applied retrospectively, until 5 April 1992 when Regulation No 859/92 came into force. Until 6 April 1992 the traders concerned were deemed not to have any information about the bodies authorised to issue certificates accompanying products originating within those former Yugoslav Republics granted preferential commercial treatment by Regulation No 545/92 after the Community suspended and denounced the EEC-Yugoslavia Cooperation Agreement, and could therefore reasonably be expected to approach the representative of Savezni Trzisni Inspektorat, Beograd in those Republics.

47However, that line of argument ceased to be valid from 6 April 1992 since after that traders were notified, by the publication of Regulation No 859/92 in the Official Journal of the European Communities, that the only bodies authorised to endorse certificates of origin were those listed in Annex I to that Regulation.

48Since Regulation No 859/92 contained exhaustive rules as to the conditions under which the arrangements for the reduced import levies in respect of baby-beef products were available throughout the period covered by the Regulation, namely from 1 January to 31 December 1992, Articles 1 and 2 of the Regulation, read together, show unequivocally that for the period from 6 April to 31 December 1992, during which the disputed import operations took place, the only bodies competent to issue certificates of origin were those expressly mentioned in Annex I to the Regulation.

49In those circumstances, neither the wording of, nor the rules laid down by, Regulation No 859/92 provides any support for the argument put forward by Schiavon that the authority of the issuing agency designated for the purposes of implementing the preferential trade arrangements provided for in Article 24 of the EEC-Yugoslavia Cooperation Agreement, as amended by Article 5 of the Additional Protocol, must be deemed to be extended, following the Community's suspension and denunciation of the Agreement and the Protocol, until such time as Community legislation designated a new issuing agency for the former Yugoslav Republic of Macedonia.

50There is further support for that interpretation in the fact that the system of reduced import levies set up by Article 7 of Regulation No 545/92 and by Regulation No 859/92 is an exceptional arrangement for the benefit of products found to originate in certain republics which were part of the former Yugoslav federation and is, therefore, to be strictly interpreted.

51It follows that only those authorities expressly designated as issuing agencies by the relevant Community legislation are competent to ensure that the system operates properly.

52There is additional support for that interpretation in the reference in Article 1(3) of Regulation No 859/92 to Article 6 of Regulation No 1368/88, under which an issuing agency may be included on the list of bodies authorised to endorse certificates of origin only if it undertakes to verify the particulars shown in the certificates and to provide the Commission and Member States, on request, with all appropriate information to enable an assessment to be made of the particulars shown in the certificates.

53The Court has already held that the system whereby movement certificates are regarded as evidence of the origin of products is founded on the principle of mutual reliance and cooperation between the competent authorities of the exporting State and those of the importing State. A system of that kind cannot therefore function properly unless the procedures for administrative cooperation are strictly complied with (see, to that effect, Case C-432/92 The Queen v Minister of Agriculture, Fisheries and Food, ex parte Anastasiou and Others [1994] ECR I-3087, paragraphs 38 and 40).

54Bearing in mind the nature and purpose of the legislation in question, it is therefore vital for certificates of origin to be endorsed only by the bodies duly authorised for that purpose by the Community authorities in respect of the period during which the import operations took place.

55In the present case, the Commission was unable to designate an issuing agency for the former Yugoslav Republic of Macedonia in 1992. After Regulation No 545/92 was adopted by the Council, the Commission invited representatives of the Republics of Slovenia, Croatia and Bosnia-Herzogovina, as well as the former Yugoslav Republic of Macedonia, to meet with a view to launching a close collaboration between the authorities of the countries of origin of the products covered by the Regulation, the authorities of the Member States receiving those products and the Commission and to proceeding to the appointment of the supervisory bodies for each of the countries concerned. However, the former Yugoslav Republic of Macedonia was not even represented at this meeting. Furthermore, despite the fact that the Commission had already set aside for the former Yugoslav Republic of Macedonia a quota for 1992 of 2 700 tonnes of baby-beef, it was not in a position later in the year to designate a competent issuing authority since it had not been able to obtain sufficient assurances from that country as to the efficacy of the supervision which would be vital to ensure that the system of reduced levies collected on the import of baby-beef operated effectively.

Consequently, the reply to the questions referred to the Court must be that Article 7 of Regulation No 545/92, and Regulation No 859/92, must be interpreted as meaning that the importation into the Community in September and October 1992 of consignments of baby-beef originating in and coming from the former Yugoslav Republic of Macedonia with certificates of origin issued by the Yugoslav body which was the competent authority prior to the denunciation by the Community of the EEC-Yugoslavia Cooperation Agreement was not capable of benefiting from the arrangements for reduced import levies provided for in Article 7 of Regulation No 545/92, even though a new competent body had not been designated for the former Yugoslav Republic of Macedonia at the time the import operations took place.

57Costs

The costs incurred by the Italian Government and 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 referring court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Tribunale Civile e Penale di Treviso by order of 10 June 1998, hereby rules:

Article 7 of Council Regulation (EEC) No 545/92 of 3 February 1992 concerning the arrangements applicable to the import into the Community of products originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro and Commission Regulation (EEC) No 859/92 of 3 April 1992 laying down detailed rules governing imports of baby-beef originating in the Republics of Croatia and Slovenia and the Yugoslav Republics of Bosnia-Herzegovina, Macedonia and Montenegro must be interpreted as meaning that the importation into the Community in September and October 1992 of consignments of baby-beef originating in and coming from the former Yugoslav Republic of Macedonia with certificates of origin issued by the Yugoslav body which was the competent authority prior to the denunciation by the Community of the Cooperation Agreement between the European Economic Community and the Socialist Federal Republic of Yugoslavia was not capable of benefiting from the arrangements for reduced import levies provided for in Article 7 of Regulation No 545/92, even though a new competent body had not been designated for the former Yugoslav Republic of Macedonia at the time the import operations took place.