Important legal notice

62001C0112

European Court reports 2002 Page I-10655

Opinion of the Advocate-General

The Vestre Landsret (Denmark) is seeking an interpretation from the Court of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1) (`the Customs Code') and Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 (2) (`the implementing regulation').

The case pending before the Vestre Landsret relates to a number of consignments entered under the external Community transit procedure. The question at issue is whether the Danish customs authorities, to which the customs office of departure belongs, are entitled to seek payment by the principal of the resulting customs debt, irrespective of the fact that the authorities failed, prior to expiry of the 11th month following the date of registration of the Community transit declaration, to notify the principal that the consignment had not been presented at the office of destination and that it had not been possible to determine where the offence or irregularity had occurred.

I - Law

Article 96(1)(a) of the Customs Code provides:

`The principal shall be the [holder] under the external Community transit procedure. He shall be responsible for:

(a) production of the goods intact at the customs office of destination by the prescribed time-limit and with due observance of the measures adopted by the customs authorities to ensure identification'.

Article 220(2)(b) of the Customs Code provides:

`Except in the cases referred to in the second and third subparagraphs of Article 217(1), subsequent entry in the accounts shall not occur where:

(b) the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration'.

Article 221(3) of the Customs Code provides:

`Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. However, where it is as a result of an act that could give rise to criminal court proceedings that the customs authorities were unable to determine the exact amount legally due, such communication may, in so far as the provisions in force so allow, be made after the expiry of such three-year period.'

Article 233 of the Customs Code provides:

`Without prejudice to the provisions in force relating to the time-barring of a customs debt and non-recovery of such a debt in the event of the legally established insolvency of the debtor, a customs debt shall be extinguished:

(a) by payment of the amount of duty;

(b) by remission of the amount of duty;

(c) where, in respect of goods declared for a customs procedure entailing the obligation to pay duties:

- the customs declaration is invalidated in accordance with Article 66,

- the goods, before their release, are either seized and simultaneously or subsequently confiscated, destroyed on the instructions of the customs authorities, destroyed or abandoned in accordance with Article 182, or destroyed or irretrievably lost as a result of their actual nature or of unforeseeable circumstances or force majeure;

(d) where goods in respect of which a customs debt is incurred in accordance with Article 202 are seized upon their unlawful introduction and are simultaneously or subsequently confiscated. In the event of seizure and confiscation, the customs debt shall none the less, for the purposes of the criminal law applicable to customs offences, be deemed not to have been extinguished where, under a Member State's criminal law, customs duties provide the basis for determining penalties or the existence of a customs debt is grounds for taking criminal proceedings.'

Article 378(1) of the implementing regulation provides:

`Without prejudice to Article 215 of the Code, where the consignment has not been presented at the office of destination and the place of the offence or irregularity cannot be established, such offence or irregularity shall be deemed to have been committed:

- in the Member State to which the office of departure belongs, or

- in the Member State to which the office of transit at the point of entry into the Community belongs, to which a transit advice note has been given,

unless within the period laid down in Article 379(2), to be determined, proof of the regularity of the transit operation or of the place where the offence or irregularity was actually committed is furnished to the satisfaction of the customs authorities.'

Article 379 of the implementing regulation provides:

`1. Where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure shall notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration. 2. The notification referred to in paragraph 1 shall indicate, in particular, the time-limit by which proof of the regularity of the transit operation or the place where the offence or irregularity was actually committed must be furnished to the office of departure to the satisfaction of the customs authorities. That time-limit shall be three months from the date of the notification referred to in paragraph 1. If the said proof has not been produced by the end of that period, the competent Member State shall take steps to recover the duties and other charges involved. In cases where that Member State is not the one in which the office of departure is located, the latter shall immediately inform the said Member State.'

II - Facts

Between 10 January and 9 June 1994 the Sønderborg Customs and Taxation Regional Office, Denmark (`the Regional Office') received four AM (Assistance Mutuelle) notifications from the Commission of the European Communities, informing them of a number of confirmed cases of offences or irregularities relating to the transit within the Community of consignments of butter originating in the Czech Republic. It was stated in particular that attempts had been made to complete the consignments by falsifying the T1 declarations used. The Commission requested all Member States `to pay particular attention to consignments of butter originating in third countries which pass in transit through the Community' and `to extend the early warning system ("EWS") for sensitive goods to shipments of butter'.

Between 28 June and 19 October 1994 the customs agents SPKR 4 No. 3482 ApS (`SPKR') placed 32 consignments of butter originating in the Czech Republic under the external Community transit procedure. It is common ground between the parties that SPKR acted in good faith, was unaware of the offences or irregularities which occurred, and knew nothing about the content of the notifications from the Commission. The offices of destination were given in the T1 declarations as `Ravenna, Italy' and `Naples, Italy'.

The Regional Office received No 1 copies of the T1 declarations on the date of registration of the Community transit declarations. It received in return No 5 copies of those T1 declarations at the end of 1994 or the beginning of 1995, although it did not record the date on which return No 5 copies were received. From those declarations it appeared that the consignments had been presented at the offices of destination. The EWS was not employed by the office of departure.

In a telex sent to the Regional Office on 28 November 1994, the Commission stated that it was aware that irregularities or offences had been committed in respect of butter of Czech origin under the external Community transit procedure and it requested the Danish customs authorities to examine a number of consignments, including those at issue in the present case.

By letter of 6 December 1994 the Regional Office was requested, as a matter of urgency, to check consignments of butter of Czech origin in the light of the four abovementioned notifications of 10 and 13 January, 4 February and 9 June 1994.

By letter dated 30 December 1994, the Regional Office informed SPKR that return No 5 copies of the T1 declarations had been received for six of the 32 consignments in question. The Regional Office stated that it considered the cases could accordingly be regarded as closed.

In a letter dated 30 March 1995 the Regional Office replied to the Commission's request of 28 November 1994, confirming that the applicant had placed 32 consignments of butter under the external Community transit procedure which corresponded to the suspect consignments of butter originating in the Czech Republic which had been notified by the Commission.

The Commission subsequently contacted the Italian customs authorities for the purpose of obtaining verification of the accuracy of the No 5 copies in their possession relating to the T1 declarations submitted by SPKR.

By letter of 23 June 1995 the Regional Office notified the guarantor that 31 consignments had not been discharged at the office of departure. SPKR received a copy of that notification at the same time. In July 1996 the Regional Office obtained identification of the final consignment covered by the present case. The reason for this delay was that the No 2 copy of the T1 declaration in question, pursuant to which the Regional Office had registered the consignment, bore a different number to the No 1 copy.

On subsequent verification of the return copies, the Italian authorities stated, by letters of 29 and 31 December 1995 (in respect of 31 consignments) and by letter of 10 August 1996 (in respect of the final consignment) that the return No 5 copies of the T1 declarations had been tampered with.

By letters of 6 February 1996 (in respect of 31 consignments) and of 6 December 1996 (in respect of the final consignment), SPKR was notified of the offence by the Regional Office and given three months to provide evidence of the regularity of the transactions or evidence as to where an offence or irregularity might in fact have occurred.

For the consignments in respect of which the Danish customs authorities considered that the place where the offence or irregularity occurred had not been established prior to expiry of the period prescribed, the authorities sought payment by SPKR of the resulting customs debt. By letters of 28 November and 1 December 1997 the Customs and Taxation Directorate adopted final administrative decisions in the cases.

Challenging those decisions, SPKR lodged an action for annulment with the Vestre Landsret on 27 November 1998.

The court making the reference states that the question which has arisen relates to the legal consequences for the authorities' entitlement to seek recovery of the customs debt of the fact that the Danish customs authorities gave the three months' notification after the expiry of the 11-month time-limit referred to in Article 379(1) of the implementing regulation.

III - The questions referred for a preliminary ruling

Those are the circumstances in which, in the light of the arguments put forward by the parties in the main proceedings, the national court decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:

`1. Must the provisions of Council Regulation (EEC) No 2913/92 (the Customs Code) and of Commission Regulation (EEC) No 2454/93 (the implementing regulation), in particular Article 379(1) of the implementing regulation, be construed as meaning that a customs debt arising by reason of an offence or irregularity in connection with external Community transit cannot be recovered from the principal by the office of departure if the principal did not, before the end of the 11th month following the date of registration of the Community transit declaration, receive the notification referred to in Article 379 of the implementing regulation?

IV - Analysis

First question

In the first question the national court asks in essence what the effects are of failure by the customs authorities to observe the 11-month time-limit laid down in Article 379(1) of the implementing regulation by which the office of departure is supposed to give notification to the principal of the fact that a consignment has not been presented at the office of destination and that it has not been possible to determine where the offence or irregularity occurred.

There are two opposing views on this.

On the one hand, SPKR considers that the 11-month time-limit is absolute. In its view, therefore, the office of departure is no longer entitled to apply the rules relating to the burden of proof laid down by Article 378 in conjunction with Article 379 of the implementing regulation. Nor can the office of departure recover the duties in question, unless it can establish that the consignment was released for consumption in Denmark without the customs duties or other charges having been paid.

On the other hand, the French, Danish and German Governments and the Commission contend that the purpose of the 11-month time-limit is solely to ensure rapid and uniform application by the authorities of the provisions governing the recovery of a customs debt. Failure to abide by it is therefore not sufficient to preclude post-clearance recovery of the customs debt.

Let me begin by analysing the provision which lays down the contested time-limit, namely Article 379(1) of the implementing regulation, which reads as follows:

`Where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office of departure shall notify the principal of this fact as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration.'

Referring to the Danish, (3) English, German, (4) and French (5) versions of that provision, SPKR argues that the wording of it confirms its view that the 11-month time-limit is absolute.

I share the view of the German Government and the Commission, however, that the wording of that provision does not enable one to draw that conclusion.

At first sight one is admittedly tempted to infer from the sense of `in any case before' [French: `au plus tard'], which appears in the German, English, Danish and French texts in particular of the provision in question that once the 11th month has expired `it is too late' [French: `il est trop tard'] to send the notification to the principal.

It is stretching the point to interpret the words `in any case before' [French: `au plus tard'] as meaning `if possible' or `preferably'.

Furthermore, it must be said that the text does not mention any consequences which might ensue if that time-limit is exceeded.

It is therefore appropriate to consider the context of the contested provision, as the French, Danish and German Governments and the Commission are requesting the Court to do.

More particularly, those Governments and the Commission observe that SPKR's view, if it were to be followed, would mean adding to Article 221(3) and Article 233 of the Customs Code a ground for the extinction of the customs debt which they do not already contain.

That observation seems to me to be correct.

Article 221(3) and Article 233 of the Customs Code, cited above, which contain specific rules relating to the extinction of a customs debt, do not mention the fact of exceeding the 11-month time-limit as a ground for extinguishing that debt.

However, the wording and also the spirit of those provisions which, as the Commission explains, are based on a balance between the need to protect the Community's own resources on the one hand and the need to protect customs agents and transport undertakings on the other, lead one to conclude that those provisions contain an exhaustive list of grounds on which a customs debt will be extinguished.

Also, as the German Government and the Commission rightly observe, the hierarchy of norms requires us to interpret the provisions of the implementing regulation in accordance with the Customs Code. (6)

One cannot, therefore, find in Article 379(1) of the implementing regulation a ground for extinguishing the customs debt which is not contained in the relevant provisions of the Customs Code.

41SPKR, however, denies that its view amounts to adding another ground for extinguishing the customs debt to those contained in the abovementioned provisions of the Customs Code.

42SPKR explains that it `does not maintain that the opportunity for the authorities to notify the principal of a customs debt is lost just because the 11-month time-limit has been exceeded. The legal effect attaching to failure to comply with the 11-month time-limit is solely that the rule relating to the burden of proof in Article 378 of the implementing regulation cannot be applied. If the authorities can show that there has been an irregularity and are in a position to say where that irregularity occurred the customs authorities of the country concerned will be entitled to recover the duties'.

43That argument is not, however, convincing.

44Notification for the purposes of Article 379(1) of the implementing regulation is made precisely because the place where the offence or the irregularity occurred cannot be established. (7) To make recovery of duties subject in such circumstances to the customs authorities of the country of departure proving where the irregularity occurred, as SPKR proposes, would make it impossible in practice to recover the duties concerned and hence, in reality, add a further ground for extinction of the customs debt to those already contained in the Customs Code.

45Moreover, the condition proposed by SPKR would mean adding to Article 378(1) of the implementing regulation an onus of proof on the customs authorities which it does not contain.

46That provision allocates responsibilities on the basis of objective criteria (the Member State to which the office of departure belongs or the Member State to which the office of transit on entry into the Community belongs and to which a transit advice note was sent), with an opportunity for the principal to adduce evidence of the legality of the transit operation or of the place where the offence or irregularity actually occurred. It does not, however, include any of the obligations with regard to the onus of proof that SPKR seeks to impose on the customs authorities.

47SPKR adds further, assuming that there is none the less a conflict, which it denies, between the provisions of the Customs Code and those of the implementing regulation, that under the principle of the lex specialis, the combined provisions of Article 379(1) and Article 379(2) of the implementing regulation must take precedence over the provisions of the Customs Code.

48In that regard, suffice it to say, as I did above, that under the principle of the hierarchy of norms the implementing regulation must be interpreted in a manner that is consistent with the Customs Code. That principle precludes therefore reading into the implementing regulation specific rules derogating from the rules contained in the Customs Code.

49In support of its view that the 11-month time-limit laid down in Article 379(1) of the implementing regulation is absolute, SPKR also contends that that time-limit is intended to protect the interest of the principal.

50If the principal receives notification of irregularities he must, under the audi alteram partem rule, have the opportunity to adduce evidence to show that he is not actually liable. The more time that elapses the more difficult it will become to reconstruct the course of events.

51Although I agree with SPKR that the principal does in fact have an interest in receiving notification of any irregularity as soon as possible, I am of the view that that interest alone does not justify the conclusion that once the 11-month time-limit has passed the customs authorities are no longer entitled to recover the customs duties in question.

52I support the explanation given by the Commission on this point, that `overstepping the 11-month time-limit has only limited consequences for the principal. He may, for example, establish within the three-year period of limitation that the Community transit operation took place lawfully by presenting the consignment to the office of destination. In normal circumstances he should have no difficulty in ascertaining that the consignment has been lawfully submitted to the office of destination. If he has entrusted the Community transit operation to another person, that person can furnish him with evidence that the operation was completed lawfully. The principal may request the other parties to his contract to provide him with a copy of the evidence that the transit operation was lawful in order to establish within the period of limitation that the transit operation has been concluded'.

53On its own, the interest in receiving a notification of an irregularity as soon as possible for evidential reasons does not therefore seem to me to be able to alter the conclusion stemming implicitly but necessarily from Article 221(3) and Article 233 of the Customs Code that failure to observe the 11-month time-limit results in extinction of the customs debt.

54That conclusion seems to me to be all the more justified in this case since the documents were tampered with.

55As the Danish Government explains to the Court, `where an attempt is made, for example, to conclude a transit operation by returning to the customs office of departure copies of the customs documents intended to be returned but bearing false stamps, the office of departure will consider a priori that the transit operation has been properly concluded so far as the office of destination is concerned. For example, the consignments at issue in the main proceedings started between January and June 1994, but the customs authorities at the office of departure were not able finally to check the authenticity of all the return copies until December 1995 and August 1996, when it became clear that the return copies had been tampered with ...

In such a situation, discovery by the office of departure of the forgery before the expiry of the 11-month time-limit is purely a matter of chance. The better the forgery, the longer the time that will elapse before the fraud is discovered by the customs authorities.'

56I must therefore agree with the Commission's observation that `the fact that the forgery is discovered only after the expiry of the 11-month time-limit is not necessarily due to a fact which is attributable to the customs authorities. To accept that the principal is released from his obligation by failure to observe the 11-month time-limit would be a significant alteration of his obligations. That view of the law would mean that in numerous cases involving transit documents that have been tampered with the principal could not be required to pay the customs debt which had arisen. Such an approach would be damaging so far as the campaign against fraud and the protection of the Community's own resources were concerned.'

57As failure to observe the 11-month time-limit does not therefore preclude recovery of the customs debt, the question arises as to what the effects of such a failure are. The time-limit must have some meaning, since otherwise it would not appear in the implementing regulation.

58The French, Danish and German Governments and the Commission consider that the purpose of the time-limit is to ensure rapid and uniform application by the competent administrative authorities of the provisions relating to the recovery of the customs debt.

59In that connection, the Danish and French Governments refer, quite correctly in my view, to Covita, (8) and De Haan, cited above. In the more recent of those judgments the Court held that:

`... failure on the part of the customs authorities to observe the time-limits laid down in Articles 3 and 5 of Regulation No 1854/89 when taking action for the post-clearance recovery of customs duty does not nullify the right of those authorities to proceed with such post-clearance recovery, provided that it is carried out within the three-year period prescribed for the purpose in Article 2(1) of Regulation No 1697/79. The sole purpose of those time-limits is to ensure rapid and uniform application by the competent administrative authorities of the technical procedures for the entry in the accounts of the amounts payable by way of import and export duties. Whilst failure by the customs authorities to observe the time-limits may result in the Member State concerned paying interest in respect of delay to the Communities, in the context of making available own resources, such failure does not affect the fact that the customs debt is payable or the authorities' right to proceed with post-clearance recovery. The same applies to the time-limit laid down in Article 6(1) of Regulation No 1854/89. Even supposing the customs authorities failed in this case to inform the principal of the amount of duty as soon as it was effectively entered in the accounts, a point which is not clear from the file, that failure to comply with Article 6(1) cannot, by itself, prevent the recovery of the duty payable so long as recovery is effected within the period of three years laid down in Article 2(1) of Regulation No 1697/79'. (9)

60Although that case concerns the time-limit for the entry into accounts of amounts of customs duties, the Court's description of the nature of that time-limit seems to me to be equally valid in the case of the 11-month time-limit at issue in the present case.

61The purpose of Articles 378 and 379 of the implementing regulation is to give the principal a last chance to establish that there has not been any irregularity or to demonstrate that if there has been any irregularity it occurred somewhere other than in the Member State of departure.

62In the interest of effectively making available the Communities' own resources, it is necessary for that demonstration to be made as soon as possible. The later the principal receives notification of the irregularity the later the three-month time-limit provided for in Article 379(2) of the implementing regulation will expire, and the later the duties concerned will be recovered and, lastly, the later the own resources will be made available.

63It seems to me, therefore, that the 11-month time-limit plays an important part in this whole process, not in the interest of the principal but in the interest of the effective recovery of the customs duties and, lastly, the rapid making available of the Communities' own resources.

64Failure to observe the time-limit thus has no consequences as regards the principal's liability for payment of the customs debt but may, in some cases, constitute failure on the part of the Member State concerned to comply with its Community obligations.

65Having reached this stage in the reasoning, it is appropriate to refer to Lensing & Brockhausen, (10) in which the Court ruled on the three-month time-limit as currently provided for in Article 379(2) of the implementing regulation.

66In respect of that time-limit the Court held that `... the Member State to which the office of departure belongs may recover duty on import only if it has indicated to the principal that he has three months in which to prove where the offence or irregularity was actually committed and such proof has not been provided within that period'. (11)

67I must support the view of the Danish and French Governments and the Commission that the 11-month time-limit provided for in Article 379(1) of the implementing regulation, on the one hand, and the three-month time-limit provided for in Article 379(2), as interpreted by the Court in Lensing & Brockhausen, cited above, on the other, are different in nature.

68As the Commission explains, `the entitlement to adduce evidence, referred to in paragraph 2, is provided for in the interest of the principal, whereas the essential purpose of the 11-month time-limit is to expedite the recovery of any customs debt'.

69That being said, failure to comply with the three-month time-limit provided for in Article 379(2) of the implementing regulation does not lead to extinction of the customs debt either.

70The Commission rightly observes that `the mere fact that the opportunity [to adduce evidence under Article 379(2) of the implementing regulation] has not been granted to the principal does not lead to extinction of the customs debt. The customs authorities may, in the light of circumstances, grant the principal at any time a period of three months in which the person liable to pay the customs debt may produce the necessary evidence'.

71Hence, if failure to comply with the three-month time-limit, although provided for in the interest of the principal, does not lead to extinction of the customs debt I do not see why failure to comply with the 11-month time-limit, which does not do so either, should have such an effect.

72For all those reasons, I propose that the answer to the national court should be that the provisions of the Customs Code and of the implementing regulation, in particular Article 379(1) of that regulation, should be interpreted as meaning that a customs debt arising by reason of an offence or irregularity in connection with external Community transit can be recovered by the office of departure from the principal even if the principal did not, before the end of the 11th month following the date of registration of the Community transit declaration, receive the notification referred to in that article.

73In the second question the national court asks whether the fact that the office of departure did not follow an administrative instruction for the transmission of information laid down in the Customs Code Committee (EWS) or that the authorities in the office of departure wrongly failed to notify in good time has any bearing on the answer to Question 1.

74Like the French, Danish and German Governments and the Commission, I am of the view that the answer to this question should be in the negative.

75It follows from the analysis of the first question that failure to observe the 11-month time-limit does not affect the principal's obligation to pay the customs debt. The reasons for the failure to observe the time-limit are therefore not relevant.

76At most, they may have a part to play in determining whether a Member State has failed to comply with its Community obligations. That question does not, however, affect the fate of the customs debt and the principal's obligations in relation to it.

77Moreover, referring to Met-Trans and Sagpol, (12) in which the Court ruled that an administrative agreement between Member States, which has no legal authority, cannot derogate from the period of one year laid down by legislation by prescribing a shorter time-limit, the French Government and the Commission observe, correctly in my view, that the EWS constitutes an instruction governing relations between the customs administrations of the Member States and that therefore it does not create any right or obligation for individuals. The latter cannot therefore rely on failure to comply with it in support of an action.

78I therefore propose that the answer to be given to the court making the reference should be that the fact that the office of departure did not follow an administrative instruction for the transmission of information laid down in the Customs Code Committee (EWS) or that the authorities in the office of departure wrongly failed to notify in good time has no bearing on the answer to Question 1.

79In view of the foregoing, I propose that the answers to the questions from the Vestre Landsret should be as follows:

- The provisions of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code and of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92, in particular Article 379(1) of Regulation No 2454/93, should be interpreted as meaning that a customs debt arising by reason of an offence or irregularity in connection with external Community transit can be recovered by the office of departure from the principal even if the principal did not, before the end of the 11th month following the date of registration of the Community transit declaration, receive the notification referred to in Article 379 of the implementing regulation.

- The fact that the office of departure did not follow an administrative instruction for the transmission of information laid down in the Customs Code Committee (early warning system) or that the authorities in the office of departure wrongly failed to notify in good time has no bearing on the answer to Question 1.

(1) - OJ 1992 L 302, p. 1.

(2) - OJ 1993 L 253, p. 1.

(3) - `... og inden udløbet af den elvte måned ...'

(4) - `... spätestens jedoch vor Ablauf des elften Monats ...'

(5) - `... et au plus tard avant l'expiration du onzième mois ...'

(6) - See also Case C-90/92 Dr Tretter [1993] ECR I-3569, paragraph 11.

(7) - See also the Opinion of Advocate General Jacobs in Case C-61/98 De Haan [1999] ECR I-5003: `[The obligation to provide notification "as soon as possible and in any case before the end of the 11th month following the date of registration of the Community transit declaration"] is clearly designed for cases where goods have "gone missing" and the customs authorities have no evidence of what has happened to them' (point 61).

(8) - Case C-370/96 [1998] ECR I-7711.

(9) - De Haan, cited above, paragraphs 34 and 35.

(10) - Case C-233/98 [1999] ECR I-7349.

(11) - Lensing & Brockhausen, cited above, paragraph 31.

(12) - Joined Cases C-310/98 and C-406/98 [2000] ECR I-1797, paragraph 48.