C-213/99 de Andrade

JUDGMENT OF THE COURT (Sixth Chamber)

7 December 2000 *

In Case C-213/99,

REFERENCE to the Court under Article 234 EC by the Tribunal Fiscal Aduaneiro do Porto, Portugal, for a preliminary ruling in the proceedings pending before that court between

José Teodoro de Andrade

and

Director da Alfândega de Leixões,

intervener:

Ministério Público,

on the interpretation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and, in particular, Articles 6, 53 and 243 thereof, and of the Community rules relating to value added tax,

* Language of the case: Portuguese.

DE ANDRADK

THE COURT (Sixth Chamber),

composed of: C. Gulmann, President of the Chamber, V. Skouris, J.-P. Puissochet (Rapporteur), R. Schintgen and F. Macken, Judges,

Advocate General: N. Fennelly, Registrar: R. Grass,

after considering the written observations submitted on behalf of:

— Mr de Andrade, by R.G. Soares, advogado, Oporto,

— the Portuguese Government, by L.I. Fernandes, Director of the Legal Service in the Directorate-General for European Community Affairs in the Ministry of Foreign Affairs, A.C. de Seiça Neves, a member of that service, and A. da Silva Teles, a member of the Legal Service of the Directorate-General for Customs and Special Consumer Taxes, acting as Agents,

— the Commission of the European Communities, by R. Tricot, of its Legal Service, acting as Agent, assisted by A. Castro, advogado, Oporto,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 21 September 2000, gives the following

Judgment

Legal context and the dispute

1By order of 11 May 1999, received at the Court on 4 June 1999, the Tribunal Fiscal Aduaneiro do Porto (Customs Court, Oporto) referred to the Court for a preliminary ruling under Article 234 EC seven questions on the interpretation of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; 'the Code'), in particular Articles 6, 53 and 243 thereof, and of the Community rules relating to value added tax ('VAT').

2Those questions were raised in proceedings between Mr de Andrade and the Director da Alfândega de Leixões (Director of the Leixões Customs Office) regarding the collection of a surcharge for failure to meet the time-limit for clearing goods through customs.

The legal background

3The Code provides, inter alia, in Article 49, that where goods have been presented to customs, a declaration for their release for free circulation, or an application for another customs-approved treatment or use, must be made within a period not exceeding 20 days or 45 days depending on the mode of transport. Where circumstances so warrant, the customs authorities may set a shorter period or authorise an extension of those periods. Article 50 of the Code makes clear that, until such time as they are assigned a customs-approved treatment or use, the goods are to be placed in temporary storage and Article 53 provides that the customs authorities are to take without delay all measures necessary, including sale, to regularise the situation of the goods in respect of which the formalities have not been initiated within the periods determined in accordance with Article 49.

4Under Portuguese law, Article 638 of the Regulamento das Alfândegas (Customs Regulations) provides that goods placed in storage under a customs procedure or another procedure are normally to be sold by the customs office when the warehousing periods have expired. Article 639 of the regulation provides, however, that the owners of those goods may still clear them through customs if they submit an application to do so within the six month period following the time at which the goods were entered for the public auction procedure. Goods which clear customs in that way are subject to all applicable charges and taxes, together with a further 5% of their value.

The main proceedings

5The company Curtume Kiriazi Ltda, established in Brazil, despatched to Portugal seven palettes of cow-hide intended for sale to Mr de Andrade. Those goods were unloaded in the port of Alcântara at Lisbon, Portugal, on 11 June 1995 and were transported by rail to Leixões where they arrived on 20 June and were deposited at the railway station. On 24 July 1995 Mr de Andrade obtained an extension of 45 days for assignation of a customs-approved treatment or use. On 3 August 1995 the goods were transferred to the warehouses of Serviço Português de Contentores (Portuguese Container Services; 'SPC') at Sao Mamede de Infesta and were declared to the Leixões Customs Office on 15 September 1995 in order to be placed under the customs warehousing scheme. They remained in SPC's warehouses until the declarations of release for free circulation and consumption were accepted. Acceptance took place on 19 September 1995 for three palettes,

9 October 1995 for one palette, 19 October 1995 for another palette and 2 January 1996 for the two remaining palettes. The Leixões Customs Office then claimed and collected a total sum of PTE 3 473 724 comprising customs duties, stamp duty and VAT.

6After the goods had been released for free circulation and consumption, the Leixões Customs Office instigated on 9 May 1996 the procedure provided for in the case of failure to comply with the time-limits, taking the view that the goods had entered national territory on 11 June 1995. On 22 January 1997, that office requested Mr de Andrade to pay a customs debt of PTE 905 483, including stamp duty and VAT, within 10 days, which he did on 3 February 1997.

7Mr de Andrade brought an action before the Tribunal Fiscal Aduaneiro do Porto seeking annulment of the notice of assessment for the sum of PTE 905 483 and reimbursement of that amount, together with interest up to the effective date of repayment. In support of his application he asserted, inter alia, that the amount claimed did not represent the cost of any warehousing services provided by the customs authority and that the penalty was disproportionate, in so far as it was not determined by reference to the conduct of the owner of the goods but was calculated by reference to the value of those goods.

8Considering that an interpretation of Community law was necessary to determine the dispute, the Tribunal Fiscal Aduaneiro do Porto decided to stay the proceedings and refer to the Court of Justice for a preliminary ruling the following questions:

'1. Is the national administrative customs procedure, in so far as it means that, automatically and without prior notice, goods not cleared by the end of the statutory periods are to be subject to the overdue-clearance procedure (sale) described above, compatible with Article 53 of the Customs Code, in particular Article 53(1)?

2. In so far as the national administrative customs procedure provides, as the only measure (applied automatically, as indicated above) to be taken by the national customs authorities, for recourse to the overdue-clearance procedure, the sole object of which is to ensure sale of the goods, may it not be regarded as a disproportionate measure infringing taxpayers' rights of defence and classifiable as an obstacle to the free movement of goods, particularly since, being applied automatically, that measure may take effect forthwith, on the first day following the end of the statutory storage period, without the importer of the goods even being warned or advised?

3. By immediately putting up the goods for "sale" in the circumstances in question, without prior notification, does the national customs administrative procedure infringe Article 6(3) of the Community Customs Code?

4. Does the national customs administrative procedure, by not making any notification compulsory in the overdue-clearance procedure, as provided for in Article 638 et seq. of the Portuguese Customs Regulations, infringe Article 243 of the Community Customs Code?

5. In the event that the overdue-clearance charge provided for in Article 638 et seq. of the Portuguese Customs Regulations falls to be classified as a procedural administrative penalty (the view taken in the national case-law), is that charge subject to VAT?

6. If the hypothesis outlined in the fifth question (that the charge constitutes an administrative penalty) is accepted, may the fact that that charge is levied on an ad valorem (objective) basis, but without any reference to fault on the part of the agent or to charges actually borne by the customs authorities in respect of measures relating to precautionary supervision, warehousing and other matters, be regarded as constituting an infringement of the principle of proportionality?

7. If, on the contrary, the said charge is not in the nature of a penalty but in fact represents remuneration for services provided by the customs authorities, is the levying of VAT justified?'

The first question

9By its first question, the national court is asking whether Article 53 of the Code precludes the automatic application, without prior notification, of a procedure such as that established by Portuguese legislation, which provides for the sale of goods in respect of which the statutory time-limits set for declaring them for release for free circulation or requesting another customs-approved treatment or use have expired ('the goods overdue for clearance').

10Mr de Andrade submits that Article 53 of the Code precludes the goods overdue for clearance being automatically put up for sale without the party concerned being given notice. The Portuguese Government and the Commission maintain, to the contrary, that Article 53 does not preclude the automatic application of a sale procedure.

11In that regard, it is sufficient to point out that Article 53 of the Code provides expressly that the customs authorities are, without delay, to take all measures necessary, including the sale of the goods, to regularise the situation of goods in respect of which the formalities have not been initiated within the requisite periods. That provision obliges those authorities to take the necessary measures, while leaving them a choice as to the type of measure and making clear that the sale of the goods is one of the measures possible.

12As has been observed in paragraph 4 of this judgment, Portuguese legislation provides for a procedure under which goods overdue for clearance are put up for sale. The parties concerned may prevent the sale taking place by paying all applicable charges and taxes, together with a certain percentage of the value of the goods.

13The answer to the first question must therefore be that Article 53 of the Code does not preclude the automatic application, without prior notification, of a procedure such as that established by Portuguese legislation, which provides for goods overdue for clearance to be put up for sale.

The second and sixth questions

14By its second and sixth questions, which may be examined together, the national court is essentially asking whether the automatic application of a procedure under which goods overdue for clearance are put up for sale or an ad valorem surcharge is levied in order to regularise their situation is contrary to the principle of proportionality.

15According to Mr de Andrade, the imposition by the Portuguese authorities, as the sole measure designed to regularise the situation of goods overdue for clearance, of a sale procedure which is capable of entailing appropriation by the State and which takes place without the party concerned receiving any notification, precludes any assessment of whether that measure is necessary to achieve the objective pursued, and therefore does not comply with the requirements of the principle of proportionality. The same is true of the surcharge in respect of régularisation, the amount of which should not be determined by reference to the customs value of the goods in question but should be on a sliding scale determined by reference to the actual gravity of the fault and its consequences, as well as by the need to ensure that time-limits are observed.

I - 1 1 1 11

16The Portuguese Government contends that the obligation to pay a certain percentage of the value of the goods is designed to promote compliance with time-limits and that it is an alternative to sale. It contends that the measures thus provided for by national legislation are reasonable and comply with the principle of proportionality.

17The Commission considers that, in so far as it creates an absolute presumption that the sale of goods is necessary in all situations, the Portuguese procedure applicable to goods overdue for clearance may seem disproportionate in relation to the nature of the offence that it is intended to penalise and the interests that it is intended to protect. As regards the levying of the duty in respect of régularisation on the value of the goods, however, the Commission submits that the mere fact that an administrative penalty is applied ad valorem does not in itself constitute a breach of the principle of proportionality.

18Community legislation has not provided for a specific administrative penalty for failure to meet the time-limits prescribed for declaring goods for release for free circulation or for requesting another customs-approved treatment or use. As has been observed in paragraph 11 of the present judgment, the legislation requires the customs authorities, however, to take any measures necessary, including sale, in order to regularise the situation of goods.

19It is settled case-law, confirmed in paragraph 20 of Case C-36/94 Siesse v Director da Alfândega de Alcântara [1995] ECR I-3573, that where Community legislation does not specifically provide for any penalty for an infringement or refers for that purpose to national legislation, Article 5 of the EC Treaty (now Article 10 EC) requires the Member States to take all the measures necessary to guarantee the application and effectiveness of Community law. For that purpose, while the choice of penalty remains within their discretion, they must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.

20As regards customs offences, the Court has pointed out that in the absence of harmonisation of the Community legislation in that field, the Member States are empowered to choose the penalties which seem appropriate to them. They must, however, exercise that power in accordance with Community law and its general principles, and consequently with the principle of proportionality (see Stesse, paragraph 21).

21It is evident from Portuguese customs legislation that although goods are normally put up for sale by customs offices once time-limits have expired, the owners of the goods may still clear them through customs if they pay a surcharge equal to a certain percentage of the value of the goods. Therefore, contrary to the assertions made by Mr de Andrade and the Commission, sale is not the only measure contemplated for regularising the situation of goods overdue for clearance. The legislation cannot, therefore, be regarded as disproportionate on the sole ground that it provides for that measure alone.

22As the Court of Justice observed in paragraph 22 of the judgment in Siesse, the purpose of a levy such as the surcharge at issue in the main proceedings, which is intended to penalise traders who have failed to comply with the prescribed formalities and time-limits, does not appear to be contrary to Community law. In the absence of such a measure, failure to comply with the prescribed formalities would in fact be without consequence for a trader authorised to regularise his position after the expiry of the time-limits. The penalty incurred is thus intended to encourage traders to act within the periods laid down.

23Nor does it appear to be contrary to Community law to make the régularisation of the situation of the goods conditional upon such a payment by way of penalty. Such a requirement is merely a safeguard measure intended to ensure the actual payment of the corresponding levy (see Siesse, paragraph 23).

24The amount of such a penalty must be determined, in accordance with the case-law cited above, under conditions which are comparable to those applicable under national law to infringements of the same nature and gravity. As the Court stated in paragraph 24 of the judgment in Siesse, it is for the national court to determine whether the 5% levy provided for in the Portuguese rules on the value of goods overdue for clearance is consistent with those principles.

25The answer to the second and sixth questions must therefore be that use of a procedure providing either for goods overdue for clearance to be put up for sale or for an ad valorem surcharge to be levied in order to regularise the situation of those goods is not in itself contrary to the principle of proportionality. It is for the national court to determine whether the surcharge applied in the present case complies with that principle.

The third and fourth questions

26By its third and fourth questions, the national court is essentially asking whether Article 6(3) and Article 243 of the Code preclude use of a procedure of the kind at issue in the main proceedings which does not provide for interested parties to be given prior notice.

27Mr de Andrade submits that the combined effect of Article 4(5) and Article 6(3) of the Code is that the use by the customs authorities of a procedure for the sale of goods such as the procedure at issue in the main proceedings constitutes a decision which must set out the grounds on which it is based and must be sent to the party concerned. Furthermore, he submits that the procedure is contrary to Article 243 of the Code, which provides for a right of appeal against decisions taken by customs authorities.

28By contrast, for the Portuguese Government the initiation of the sale procedure in respect of goods overdue for clearance is not the outcome of a decision of the administrative authorities but is the consequence in law of failing to comply with a time-limit. The case does not therefore fall within the scope of Article 6(3) of the Code, which obliges the customs authorities to provide reasons both for decisions rejecting requests and for those which are detrimental to the persons to w h om they are addressed. The Portuguese Government also submits that Article 243 of the Code provides a right of appeal solely against decisions of the customs authorities, although it is clear, however, that during and on termination of the procedure, the parties concerned have various opportunities for appeal, and may, as has occurred in the case before the national court, appeal against the notice of assessment for the amount demanded in respect of regularisation of the situation of the goods.

29The Commission takes the view that the Code requires there to be a written decision only where there has been a written request and that Article 6 relates only to decisions addressed to a particular person. Decisions could concern goods whose owner is unknown. However, in so far as it does not impose any requirement to give notification prior to the sale of the goods, even when the owner or importer is known to the customs authorities, the Portuguese procedure does not enable the owner or importer to exercise the right of appeal that is conferred on him by Article 243 of the Code.

30Article 6(3) of the Code provides: 'Decisions adopted by the customs authorities in writing which either reject requests or are detrimental to the persons to whom they are addressed shall set out the grounds on which they are based. They shall refer to the right of appeal provided for in Article 243.' The first subparagraph of Article 243(1) provides: 'Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him directly and individually.'

31In the first place, the obligation imposed by Article 6(3) of the Code to set out the grounds on which the decision is based concerns only adverse decisions taken in writing which are in response to a request or are addressed to a particular person. In that regard, it is sufficient to note that the sale procedure was not, in the present case, preceded by any written decision at all and that, as has been made clear in the answer to the first question, the customs authorities are not bound by Article 53 of the Community Customs Code to take a written decision before carrying out that procedure.

32Second, as regards the right of appeal laid down in Article 243 of the Code, it is sufficient to point out that it may be exercised at different stages of the procedure, in particular at the time when the goods are entered for the public auction procedure or even, as was so in the case before the national court, after receipt of the notice of assessment of the amount payable in order to regularise the situation of the goods.

33Therefore the answer to the third and fourth questions must be that Article 6(3) and Article 243 of the Code do not preclude use of a procedure of the kind at issue in the main proceedings, which does not provide for interested parties to receive prior notification.

DF. ANDRADE

The fifth and seventh questions

34By its fifth and seventh questions, the national court is asking whether the disputed surcharge in the main proceedings may he subject to VAT, depending on whether or not the surcharge is in the nature of a penalty.

35Mr de Andrade, the Portuguese Government and the Commission submit that inasmuch as it is not related to any supply of services, the surcharge levied for failure to comply with the time-limit prescribed by Article 49 of the Code cannot be subject to VAT.

36Under Article 2 of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1), both the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such and the importation of goods are subject to VAT.

37As has been pointed out in paragraph 22 of the present judgment, a duty such as the disputed surcharge seeks to penalise the economic operators who have not complied with the prescribed formalities and time-limits. The duty constitutes, therefore, a penalty and not consideration for a supply of goods or services or the importing of goods. Such a penalty cannot by its nature be subject to VAT.

38The answer to the fifth and seventh questions must therefore be that a surcharge intended to penalise a failure to comply with customs formalities cannot be subject to VAT.

Costs

39The costs incurred by the Portuguese 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.

Operative part

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Tribunal Fiscal Aduaneiro do Porto by order of 11 May 1999, hereby rules:

1. Article 53 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code does not preclude the automatic application, without prior notification, of a procedure such as that established by Portuguese legislation, which provides for goods to be put up for sale where the statutory time-limits for making a declaration for release for free circulation or an application for another customs-approved treatment or use for the goods have expired.

2. Use of a procedure providing either for such goods to be put up for sale or for an ad valorem surcharge to be levied in order to regularise the situation of DĽ ANDRADE

the goods is not in itself contrary to the principle of proportionality. It is for the national court to determine whether the surcharge applied in the present case complies with that principle.

3. Article 6(3) and Article 243 of Regulation No 2913/92 do not preclude use of a procedure, such as that at issue in the main proceedings, which does not provide for interested parties to receive prior notification.

4. A surcharge intended to penalise a failure to comply with customs formalities cannot be subject to value added tax.

Gulmann Skouris Puissochet

Schintgen Macken

Delivered in open court in Luxembourg on 7 December 2000.

R. Grass C. Gulmann

Registrar President of the Sixth Chamber

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 21 September 2000 *

I — Introduction

1The main issue in this case is the compatibility of the procedure laid down by Portuguese law for goods in respect of which the necessary formalities have not been fulfilled within the correct time-limits (hereinafter 'overdue-clearance procedure') with Community customs law and the general principles of Community law.

II — Legal context

2Community customs law is contained in Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (hereinafter 'the Customs Code' or 'the Code').

* Original language: English.

3Article 4 of the Customs Code provides:

'For the purposes of this Code, the following definitions shall apply: ....

(5) "Decision" means any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons;... .'

4Article 6(3) states:

'Decisions adopted by the customs authorities in writing which either reject requests or are detrimental to the persons to whom they are addressed shall set out the grounds on which they are based. They shall refer to the right of appeal provided for in Article 243.'

5Title III of the Code, comprising Articles 37 to 57, is entitled 'Provisions applicable to goods brought into the Customs territory of the Community until they are assigned a customs-approved treatment or use' and Chapter 4 thereof concerns the 'obligation to assign goods presented to customs a customs-approved treatment or use'. Article 49 lays down the time-limits which must be obeyed for the declaration of goods:

'1. Where goods are covered by a summary declaration, the formalities necessary for them to be assigned a customs-approved treatment or use must be carried out within:

(a) 45 days from the date on which the summary declaration is lodged in the case of goods carried by sea;

(b) 20 days from the date on which the summary declaration is lodged in the case of goods carried otherwise than by sea.

2. Where circumstances so warrant, the customs authorities may set a shorter period or authorise an extension of the periods referred to in paragraph 1. Such extension shall not, however, exceed the genuine requirements which are justified by the circumstances.'

6Chapter 5 of Title III concerns 'goods in temporary storage'. Article 50 defines this term as follows: 'until such time as they are assignated [sic] a customs-approved treatment or use, goods presented to customs shall, following such presentation, have the status of goods in temporary storage'. Article 53 states:

'1. The customs authorities shall without delay take all measures necessary, including the sale of the goods, to regularise the situation of goods in respect of which the formalities necessary for them to be assigned a customs-approved treatment or use are not initiated within the periods determined in accordance with Article 49.

2. The customs authorities may, at the risk and expense of the person holding them, have the goods in question transferred to a special place, which is under their supervision, until the situation of the goods is regularised.'

DF ANDRADE

7Title VIII, comprising Articles 243 to 246, concerns appeals. Article 243 reads as follows:

'1. Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him directly and individually.

Any person who has applied to the customs authorities for a decision relating to the application of customs legislation and has not obtained a ruling on that request within the period referred to in Article 6(2) shall also be entitled to exercise the right of appeal.

The appeal must be lodged in the Member State where the decision has been taken or applied for.

2. The right of appeal may be exercised:

(a) initially, before the customs authorities designated for that purpose by the Member States;

(b) subsequently, before an independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.'

8Title II of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (hereinafter 'the Sixth VAT Directive') defines the scope of the Directive. Article 2, its sole provision, provides that:

'The following shall be subject to value added tax:

1. the supply of goods or services effected for consideration within the territory of the country by a taxable person acting as such;

2. the importation of goods.'

9Article 4 of the Sixth VAT Directive defines the notion of 'Taxable Persons' as:

'1. ... any person who independently carries out in any place any economic activity specified in paragraph 2, whatever the purpose or results of that activity; ...

5. States, regional and local government authorities and other bodies governed by public law shall not be considered taxable persons in respect of the activities or transactions in which they engage as public authorities, even where they collect dues, fees, contributions or payments in connection with these activities or transactions. However, when they engage in such activities or transactions, they shall be considered taxable persons in respect of these activities or transactions where treatment as non-taxable persons would lead to significant distortions of competition.

In any case, these bodies shall be considered taxable persons in relation to the activities listed in Annex D, provided they are not carried out on such a small scale as to be negligible ... .'

Annex D includes 'warehousing'.

10In the Portuguese Republic the situation of goods not cleared in due time is covered by Articles 638 and 639 of the Regulamento das Alfândegas (Customs Regulation).

11According to Article 638, these goods should be sold by public auction once the time-limits for fulfilment of all the legal obligations have elapsed.

12Article 639 provides that the owners of such goods can still declare them if they apply to do so within a period of six months following the time at which the goods are made subject to compulsory sale. Goods declared in accordance with this article shall be subject to the payment of all charges and levies due, increased by five per cent of the value thereof (hereinafter 'the overdue-clearance charge' or simply 'the charge').

13Article 675 states:

'The net proceeds of the auction shall be appropriated in accordance with the following order of priority: ...

In the case of goods not cleared within the statutory periods, or under the conditions laid down in Article 638(3) and (4), the net proceeds from the sale thereof, after deduction of Community own resources, national customs duties and other levies, shall be placed on deposit to the order of the State to be incorporated in revenue if not claimed within one month.'

14Finally, this Court has already answered a preliminary reference concerning the Portuguese Customs Regulation in Siesse. Subsequent to this judgment, the Supremo Tribunal Administrativo (Supreme Administrative Court) and the Tribunal Constitucional (Constitutional Court), Portugal, found that the overdue-clearance charge was compatible with the principles of Community law outlined by the Court.

III — The facts and national proceedings

15According to the order for reference Mr de Andrade (hereinafter 'the applicant') imported seven palettes of cowhide into the European Community where they arrived on 11 June 1995. The applicant requested an extension of the time-limit for specifying a customs destination for the goods. A 45-day extension was granted by the customs office. The goods were declared to the Leixões customs office for customs warehousing on 15 September 1995 and they were released in batches for free circulation and consumption between 19 September 1995 and 2 January 1996. On 9 May 1996, the Leixões customs office initiated overdue-clearance proceedings in respect of the goods.

16On initiating the overdue-clearance proceedings, the customs authorities demanded that the applicant pay the sum of PTE 905 483, a customs debt comprising PTE 310 stamp duty, PTE 773 652 o v e r d u e - c 1 e a r a nc e c h a r g e, and PTE 131 521 VAT calculated at 17% of the amount of the overdue-clearance charge. The applicant paid this amount but then brought an action before the Tribunal Fiscal Aduaneiro do Porto (Customs Court, Oporto) seeking its repayment.

17Considering that the case brought by the applicant raised questions of Community law on which a decision is necessary to enable it to give judgment, the Tribunal Fiscal Aduaneiro do Porto referred the following questions to the Court for a preliminary ruling pursuant to Article 234 EC:

'1. Is the national administrative customs procedure, in so far as it means that, described above, does the national customs administrative procedure infringe Article 6(3) of the Community Customs Code?

4. Does the national customs administrat

automatically and without prior notice, goods remaining uncleared beyond the statutory periods are to be subject to the overdue-clearance procedure (sale), compatible with Article 53 of the Customs Code, in particular Article 53(1)?

2. In so far as the national administrative ive procedure, by not making any notification compulsory in the over due-clearance procedure, as provided for in Article 638 et seq. of the Customs Regulations, infringe Article 243 of the Community Customs Code?

5. In the event that the overdue-clearance

customs procedure provides, as the only measure (applied automatically, as indicated above) to be taken by the national customs authorities, for recourse to the overdue-clearance procedure, the sole object of which is to ensure sale of the goods, may it not be regarded as a disproportionate measure infringing taxpayers' rights of defence and classifiable as an obstacle to the free movement of goods, particularly since, being applied automatically, that charge provided for in Article 638 et seq. of the Customs Regulations falls to be classified as a procedural administrative penalty (the view taken in the national case-law), is that charge subject to VAT?

measure may take effect forthwith, that 6. If the hypothesis outlined in the Fifth is to say on the first day following the end of the statutory storage period, without the importer of the goods even being warned or advised?

3. By immediately putting up the goods for "sale" in the circumstances Question (that the charge constitutes an administrative penalty) is accepted, may the fact that that charge is levied on an ad valorem (objective) basis, but without any reference to fault on the part of the agent or to charges actually borne by the customs authorities in respect of measures relating to precautionary supervision, warehousing and other matters, be regarded as constituting an infringement of the principle of proportionality?

DU ANDRADU 7. If it were accepted, on the contrary, that the said charge is not in the nature of a penalty but in fact represents remuneration for services provided by the customs authorities, would the levying of VAT be justified?'

IV — Observations and analysis

18Written observations were submitted to the Court by the applicant, by the Portuguese Republic, and by the Commission of the European Communities.

19The national court's questions cover four areas which I will deal with in turn; the proportionality of the sanction (part of Question 2 and Question 6), rights of the defence (Question 1, part of Question 2, Questions 3 and 4), free movement of goods (part of Question 2), and VAT (Questions 5 and 7).

20A preliminary remark may be in order before I consider the substance of the questions referred by the national court. It appears from the facts as they are contained in the order for reference, that the applicant declared the goods in question to the customs office for customs warehousing on 15 September 1995 and that they were released for free circulation between 19 September 1995 and 2 January 1996. Thus when the customs office, on 9 May 1996, initiated overdue-clearance proceedings in respect of the applicant's goods, these goods were already in free circulation in the Community and removed from any premises owned by the customs office. Therefore there was never any possibility of the applicant's goods being sold by the customs authorities subsequent to initiation of the overdue-clearance proceedings in this case. For this reason, when considering compliance of the proceedings with the principle of proportionality and any possible violations of the applicant's rights of defence, I will confine my analysis, except where otherwise indicated, to compatibility of the overdue-clearance charge with these principles. My analysis is not intended to cover the compulsory sale of an importer's goods, though some reference to that procedure is unavoidable.

(a) Compliance of the overdue-clearance charge with the principle of proportionality

21In Questions 2 (as regards compliance with the principle of proportionality) and 6 the national court essentially seeks to know if the levying of the overdue-clearance charge, without notifying the importer and without any account being taken of the degree of fault of the importer, is compatible with the principle of proportionality.

22The applicant submits that the principle of proportionality, as well as constituting a general principle of Community law, is expressly included in Article 53 of the Customs Code, which speaks of 'all measures necessary'. He argues that when goods have not been declared within the proper time-limits, the Portuguese system automatically puts them up for sale or obliges the importer to pay the overdue-clearance charge. It is claimed that both of these options constitute violations of the property rights of the importer, who is never asked whether or not sale or imposition of the charge is truly necessary.

23The applicant contends that the proportionality of the entire Portuguese legislation should be examined. He claims that the national courts which have upheld the present system after the Siesse case merely examined the proportionality of the over due-clearance charge when this is compared with the compulsory sale of the importer's goods and the possible appropriation of the proceeds of sale by the State. According to the applicant, a scheme which makes late declaration of goods conditional on payment of such a charge and which includes sums that are not necessary to assure the objectives of the procedure is disproportionate to this objective.

24Finally, the applicant submits that since the amount of the overdue-clearance charge is determined ad valorem, at 5% of the customs value of the goods, it is disproportionate. In addition, Portuguese law normally makes allowance for the degree of fault of the defendant when setting a sanction. Thus the overdue-clearance charge is not levied under analogous conditions to equivalent national sanctions as the Court has stipulated.

25Portugal argues that Article 53 of the Code leaves Member States a discretion as to how to regularise the situation of goods not cleared in time. Article 53 explicitly countenances sale of such goods as one way of achieving this. The Portuguese system is an effective response to the need to encourage the respecting of time-limits. Yet it does provide some flexibility as it offers importers the opportunity of making a late declaration so long as they pay the over due-clearance charge.

26Portugal further contends that the reasonableness of the system is borne out by the possibility for an importer to request an extension of the deadline for assigning a customs-approved treatment or use.

27Finally, Portugal relies on the finding of its Tribunal Constitucional, subsequent to this Court's judgment in Siesse, that imposition of an ad valorem sanction is compatible with the principle of proportionality.

28The Commission agrees with the Portuguese authorities that Article 53 gives them a discretion as to what penalty they may impose. Any penalty must none the less be effective, dissuasive, and proportionate. Member States are obliged, under Article 10 EC, to punish breaches of Community law.

29However, the Commission does not believe that the Portuguese legislation is proportionate to the aims which it pursues. Whereas in Siesse the Court stated that sale of an importer's goods was a solution of last resort, the Portuguese system establishes an absolute presumption that such sale is always necessary to regularise the situation of the goods in question.

30The Commission also submits that a system of objective responsibility is in appropriate as the breach of the law in question is not a serious one and there should be a possibility for exoneration (e.g. in the case of force majeure). Further, the objective character of the sanction must be clear and unambiguous and this is not the case.

31Lastly, the Commission considers that the fact the sanction is calculated ad valorem does not necessarily mean it is disproportionate. In the present case the application of such a sanction falls within the Member State's discretion. Moreover in Siesse, the Court did not rule that the 5% overdue-clearance charge was disproportionate. The Commission remarks that the 5% charge represents the entire liability of the importer to the customs authorities and no additional charge is made to cover administrative expenses or interest.

32As I have already explained, my analysis is primarily, if not exclusively, confined to compatibility of the overdue-clearance charge with the principle of proportionality.

33The principle of proportionality is a fundamental principle of law whose observance must be assured by the Court. To be proportionate to its objective, a measure must be necessary and appropriate to achieving its purpose, this purpose must not be attainable in a less restrictive manner, and the advantages pursued must not be disproportionate to the measure's onerous effects.

34As the Commission has correctly submitted, it is necessary that a procedure exist in order to regularise the situation of goods when an importer has failed to observe the prescribed customs formalities. Keeping goods in temporary deposit represents a cost for a Member State and there is a risk that the goods will lose their commercial value or cause damage to the authorities' storage facilities. The imposition of a deadline for assigning a customs-approved treatment or use is therefore a rule of good administration which contributes to a more effective handling and processing of goods by the customs authorities.

35In addition, the Commission is right to observe that sanctioning a failure to observe these time-limits may be beneficial. It dissuades subsequent repetitions of the same failure by the importer, encourages general observance of time-limits, puts an end to temporary storage or control of the goods by the customs authorities, and guarantees payment of customs duties if these have not been paid already.

36Seen in this context I consider that the word 'necessary' in Article 53(1) of the Customs Code extends to the imposition of a sanction which generally dissuades failures to observe customs formalities.

37The Court has already had the opportunity of considering the Portuguese legislation at issue in the present case. In Siesse, the Court decided that the predecessor to the Customs Code, Council Regulation (EEC) No 4151/88 of 21 December 1988 laying down the provisions applicable to goods brought into the customs territory of the Community, did not preclude the possibility that goods in respect of which the time-limits for clearance have not been obeyed, might have their situation regularised by acceptance of a declaration for free circulation. As regards any sanctions (the overdue-clearance charge) that Member States might impose on traders who do not comply with the aforementioned time-limits, the Court decided that, while the Member States enjoy a discretion in this field, they must ensure that infringements of Community law are penalised in a manner which is effective, proportionate, and dissuasive. Further, such penalties must comply with the general principles of Community law, in particular the principle of proportionality, and be determined under conditions which are analogous to those applicable to infringements of national law of the same nature and gravity. The Court stated that consistency with these general principles and conditions was a matter for the national court to determine.

38The Court characterised the overdue-clearance charge as a 'safeguard measure intended to ensure the actual payment of the corresponding [customs] levy' 16 and the Advocate General considered that it was a means for the customs authorities to maintain their 'secured right' to obtain satisfaction in respect of expenses which they had incurred.

39In the present case, it appears from the order for reference that all customs duties owed in respect of the imported goods were paid on their release for free circulation and, as I have already noted, this date preceded commencement of the overdue-clearance proceedings by the authorities. Therefore imposition of the overdue-clearance charge in the present case cannot be said to pursue the aim of making sure that the importer settles any debt in the form of customs duties on the goods. Its imposition, as regards the relationship between the applicant and the authorities in respect of the goods in question, only seeks to penalise him for failure to observe the statutory time-limits and recover any expenses occasioned because of the prolonged storage of the goods, together with any interest for the late payment of the initial customs duties.

40When making its assessment regarding the proportionality of the overdue-clear ance charge the national court must lake into account its purpose and it must also take into account the other reasons for imposing such a sanction as I have outlined them in paragraphs 34 and 35 above. The national court must make sure that the system under consideration complies with the principle of proportionality in the general sense and not only in its application to the individual case.

41A calculation, ad valorem, has the merit of being proportional to the value of the goods. It is also objective and of a predictable amount.

42It appears from both the order for reference and from the written observations that the imposition of the overdue-clearance charge is automatic in the sense that there is no provision for any exceptions. Naturally, if the national court were to find that the customs authorities had made a mistake either in imposing the charge or in calculating its amount, the importer would be, at least to the extent of such error, exonerated from paying the charge.

43Although the Commission criticises the absence of alleviation of the charge in circumstances of force majeure, I do not think it is possible to reach any conclusions on this element in the present case. The case-law shows that the Court assesses the issue of force majeure in the context of the particular regulatory framework of the individual case. As it stated in its judgment in First City Trading, 'it is settled case-law that, since the concept of force majeure does not have the same scope in various spheres of application of Community law, its meaning must be determined by reference to the legal context in which it is to operate'. Article 53 of the Customs Code only permits the authorities to take measures which are 'necessary' to regularise the situation of goods. In the present case we are concerned with a Member State implementing Community law in its national order. It is established that Member States are bound to respect fundamental rights and proportionality, as these principles are interpreted by the Court, when they implement Community law. It seems to follow, at least in the presence of circumstances amounting to force majeure, that a compulsory sale of the importer's goods, since it is a direct interference with a property right, is unlikely to be a proportionate measure. But the applicant has failed to provide any evidence of circumstances claimed to amount to force majeure which may have affected his own failure to clear the goods in time. In fact, the goods were cleared, though late, and the normal customs duties were then paid. Where the issue is limited to the recovery of a financial penalty, as in the present case, I do not think it is appropriate to engage in speculation by attempting to outline the scope of the application of the concept of force majeure in the absence of any evidence to justify it.

44I am aware that the applicant has alleged that the overdue-clearance charge is not levied under conditions which are analogous to those applicable to infringements of national law of a similar nature and importance. However, in the absence of information on this point in the order for reference, I cannot make any detailed assessment of this claim. It must be remembered that in Siesse, the Court did stipulate, as a condition of validity of the sanction, that it be governed by 'conditions both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance'. I believe that the Court in Siesse was concerned with ensuring that the violation be penalised in conditions which are at least as strict as those applicable under national law. If the sanction is proportionate to its aim, it may not be necessary that it be identical to its national equivalent; in other words, it may be a stricter sanction.

(b) Compliance with rights of the defence

45In Questions 1, 2 (as regards possible infringement of taxpayers' rights of defence), 3 and 4, the national court seeks, in essence, to know if the fact that the Portuguese overdue-clearance proceeding operates automatically and without prior notice infringes Articles 6(3), 53(1) or 243 of the Customs Code.

46The applicant reiterates that any procedure initiated in respect of goods which have not been assigned a customs-approved treatment or use must be necessary. He considers that unless the importer is notified on initiation of this procedure, he cannot possibly show that sale or imposition of the overdue-clearance charge is unnecessary in respect of his goods. The absence of notification also results in him being unable to exercise his fundamental rights of defence. In his opinion such a procedure must be adversarial.

47The applicant further submits that the initiation of overdue-clearance proceedings is a 'decision' in the sense of Article 4(5) of the Customs Code. Further, it is a 'detrimental' decision, so that, under Article 6(3) of the Code, it must set out the grounds on which it is based and refer to the right of appeal contained in Article 243.

48Portugal, however, maintains that no decision is required to initiate the overdue-clearance proceedings. Their commencement is a direct legal consequence of the breach of Article 49 of the Customs Code and, under Article 53 thereof, the authorities are obliged to regularise the situation of goods. Therefore neither Article 6(3) nor Article 243 of the Code applies. In any event, it contends that the importer has the right to lodge appeals during the procedure and that Article 243 cannot therefore have been infringed.

49The Commission submits that it is not necessary to notify importers pursuant to Article 6(3) of the Code. The text of Article 53 of the Code obliges the customs authorities to act 'without delay'. To impose an extra condition of notifying importers would slow clown the procedure and postpone fulfilment of the authority's duty.

50The Commission argues that Article 6(3) of the Code is not applicable. It is not necessary that the authorities adopt a written decision to initiate the proceedings. The decision may well be detrimental to its addressee but not all detrimental decisions need be in writing. It is only when individuals themselves make requests in writing that written decisions need be made. Finally, operation of Article 6(3) assumes that a decision taken thereunder be addressed to an identified individual. This is not always the case in respect of overdue-clearance proceedings as the authorities are not in all cases in a position to identify the importer at the relevant time.

51Concerning the right of appeal contained in Article 243 of the Code, the Commission distinguishes between imposition of the overdue-clearance charge and the compulsory sale of goods. It is not necessary to inform importers of imposition of a fine as they will discover this when payment thereof is sought. As regards sale of the goods, the Commission believes that when sale is urgent importers need not be informed immediately but that, even in this case, they should be informed as soon as possible. The obligations incumbent on the authorities are somewhat alleviated by the compulsory publication, under Article 659 of the Portuguese customs law, of a list of the goods placed for sale pursuant to overdue-clearance proceedings. Otherwise the Commission draws a further distinction according to whether or not the importer is known to the authorities: if importers are unknown it may be very costly to locate them so no notification will be required but where they are known, they should be informed of their right to appeal. If importers who are known to the authorities are not informed of their right to appeal, they will be unable to prove lack of necessity or error by the customs authorities and there will be a real risk of irreparable damage ensuing. This risk is compounded by the very limited powers of review of the national judge in this procedure.

52It must be borne in mind that observance of the rights of the defence is a fundamental principle of Community law, according to which addressees of decisions of public authorities which, as in this case, perceptibly affect their interests must be enabled to express their views effectively.

53The Customs Code makes provision for the exercise of this right to a fair hearing in Article 6(3) and Article 243. Article 243 does not itself stipulate that an importer be informed of his right to appeal. On the other hand, Article 6(3) does provide that an importer be notified both of the reasons for which a decision has been taken and of his right to appeal. The applicability of Article 6(3) is subject to certain conditions; first a 'decision' (as defined in Article 4(5) of the Code) must have been taken, second the decision must be 'in writing', and, finally, the decision must 'reject requests' of or be 'detrimental' to its addressee.

54Portugal insists that, under Portuguese law, initiation of overdue-clearance proceedings is an automatic legal consequence of failure to obey Article 49 of the Customs Code. However, I believe that the concept of a 'decision' must receive a uniform Community interpretation. Whether or not a decision has been taken cannot be dependent on the manner in which the different Member States interpret their obligations under Article 53 of the Code.

55I would consider that a 'decision' is an act manifesting the exercise of a judgment or of a discretion. It is an act taken after consideration of various factors and, under Community law, such an act would have to set out the grounds or reasons which led to that exercise of discretion in order that its addressee be in a position to mount an effective challenge to its validity.

56In Portugal, as soon as the importer exercises his right to make a late declaration under Article 639 of the Customs Regulation, the 5% overdue-clearance charge becomes payable. As I outlined above, to be in conformity with Community law the charge must comply with certain principles. I will assume, for present purposes, that the charge is proportionate and that it is applied in conditions which are analogous to those applicable to infringements of national law of the same nature and gravity, as the question of a possible violation of the importer's rights of defence only arises if this is the case. Presuming this to be so, the application of the overdue-clearance charge is indeed automatic as has been argued by Portugal, in the sense that its application is not dependent on an exercise of judgment or of discretion. Therefore, I do not think that imposition of the charge is a 'decision' under Community law.

57The act of notifying the importer of his liability for the overdue-clearance charge would not require extensive reasoning. As the applicant and the interveners have explained in their written observations, the amount of the charge is always determined ad valorem at 5% of the value of the goods, which can be simply stated.

58Since I do not believe that any 'decision' was taken in the present case, the authorities were not under an obligation to notify the applicant or to mention the possibility of an appeal under Article 243 of the Customs Code. However, the applicant does retain the right to dispute the imposition of the overdue-clearance charge in his particular case. He may, for example, allege mistake by the authorities or, as in the present proceedings, question the proportionality of the charge. In the present case, it would appear to me that, by bringing his case before the Tribunal Fiscal Aduaneiro, the applicant has shown that, even when Articles 6(3) and 243 of the Code are not applicable, an importer is not deprived of the right to a judicial ruling on the validity of the imposition of the overdue-clearance charge.

59I think, however, it appropriate to give two examples of situations in which I feel a 'decision' within the meaning of Article 4(5) of the Customs Code would have been taken so that Article 6(3) would be applicable. First, there is little doubt that when, under Article 49 of the Code, a customs authority decides to set a shorter period for assignment of a customs-approved treatment or use or decides not to extend the deadline when this has been requested, it thereby exercises a discretion and thus takes a 'decision'. Secondly, I believe that when a compulsory sale of the importer's goods is organised pursuant to Article 638 of the Portuguese Customs Regulation, this likewise constitutes a decision. A sale pursuant to Article 638 is based on Article 53 of the Code, under which, however, it is not obligatory. Reliance on the option contained in Article 53 involves exercise of discretion or judgment by the customs authorities. They must, in particular, judge that sale of the goods, as distinct from any other remedy, is necessary. Further, while such a sale is certainly permissible, in principle, under Article 53, it does constitute a substantial infringement of the importer's property rights, especially when one considers that, under certain conditions enumerated in Article 675 of the Portuguese Customs Regulation, the Member State may appropriate the proceeds of the sale. The importer's fundamental rights to property must be observed. Consequently, I consider that importers whose goods are to be put up for sale should, as soon as possible and in sufficient time, be notified of this 'decision'. Unless they are so notified, their property rights will be infringed without the possibility of their exercising the right under Article 639 of the Portuguese Customs Regulation to pay the overdue-clearance charge.

(c) Free movement of goods

60In Question 2 the national court asks if the levying of the overdue-clearance charge is constitutive of an obstacle to the free movement of goods.

61The overdue-clearance charge is certainly not a measure of equivalent effect to a customs duty under Article 25 EC as it is only applied to goods originating outside the Community.

62Nevertheless, the applicant contends that the charge is a distortion of the principle of unified treatment by all the Member States of goods coming from third countries. It is argued that this principle follows from the creation of a customs union in Article 23 EC. The fact that VAT is calculated on the amount of the charge confirms its true nature as an obstacle to the free movement of goods.

63The Commission agrees that since the establishment of the Common Customs Tariff Member States cannot unilaterally introduce new customs duties on goods imported from third countries nor raise existing ones. However, it also observes, and I agree, that the overdue-clearance charge is not applied across the board to all importers but only to those who have failed to respect the time-limits for assigning a customs-approved treatment or use. Therefore, the charge is not an obstacle to the free movement of goods.

(d) VAT

64In Questions 5 and 7, the national court asks if the customs authorities may impose VAT on the amount of the overdue-clearance charge.

65The applicant, Portugal, and the Commission are all in agreement that the over due-clearance charge is a procedural administrative penalty and should not be subject to VAT. I agree with this analysis in so far as when imposing the charge the customs authorities are acting as a 'public authority' and are therefore, under Article 4 of the Sixth VAT Directive, not a 'taxable person'. Thus, no VAT is payable.

66The Commission is correct to state that no distortion of competition can arise when the customs authorities exercise this power of sanction. The authorities have no potential competitors in this area and thus the important VAT principle of neutrality cannot be infringed.

67If, in the alternative, a warehousing service was provided by the customs authorities, it could be subject to VAT. such authorities would constitute 'taxable Warehousing is listed in point 9 of persons' once the service they provide is Annex D to the Sixth VAT Directive so 'not carried out on such a small scale as to according to the third indent of Article 4(5) be negligible'.

V — Conclusion

68I am accordingly of the opinion that the questions submitted by the Tribunal Fiscal Aduaneiro do Porto should be answered as follows:

— Community law does not preclude the competent customs authority from requiring the payment of a penalty, determined ad valorem at 5% of the customs value of goods, for accepting a declaration for their release for free circulation after the expiry of the periods provided for in Article 49 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, provided that the amount of that penalty is determined in accordance with the principle of proportionality and under conditions which are analogous to those applicable in national law to infringements of the same nature and gravity. It is for the national court to determine whether the penalty in issue in the main proceedings is consistent with those principles.

— When an importer becomes liable for the penalty for making a declaration for free circulation after expiry of the periods provided for in Article 49 of Regulation No 2913/92, no 'decision' within the meaning of Article 4(5) of the same Regulation is taken by the customs authorities and neither Article 6(3) nor Article 243 of that Regulation is applicable.

— The penalty for making a declaration for free circulation after expiry of the periods provided for in Article 49 of Regulation No 2913/92 does not constitute an obstacle to the free movement of goods.

— The penalty for making a declaration for free circulation after expiry of the periods provided for in Article 49 of Regulation No 2913/92 is a procedural administrative penalty and is, therefore, not subject to VAT under the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment.

Notes

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

(2) OJ 1977 L. 145 , p. 1.

(3) Case C-36/94 Siesse v Director da Alfândega de Alcântara (hereinafter 'Siesse') [1995] ECR I-3573.

(4) The Registry of tile Court has been informed that the Tribunal Fiscal Aduaneiro do Porto no longer exists following the adoption of Decree Law No 301 -A/99 of

(5) August 1999 and that the present case has been transferred to the Tribunal Tributário tle Primeira Instância do Porto (Tax Court of First Instance).

(5) Cited at footnote 3 above.

(6) Siesse, cited at footnote 3 above.

(7) Tribunal Constitucional judgment of 29 June 1999, Siesse,

(940) /88.

(8) Case C-177/95 Ebony Maritime and Loten Navigation v Prefetto della Provincia di Brindisi and Others [1997) ECR I-1111.

(9) Case 182/84 Mim [1985] ECR 3 7 3 1, paragraph 14.

(10) See my Opinion in Case C-217/99 Commission v Belgium, [2000] ECR 1-10251, I-10253 paragraph 35 and the discussion contained in footnote 18 thereof.

(11) OJ 1988 L 367, p. 1. This Regulation is, in all respects, relevant to the present case, identical to the Customs Code.

(12) Siesse, cited at footnote 3 above, paragraph 12.

(13) Ibid., paragraphs 20 and 24.

(14) Paragraphs 20 and 24.

(15) Paragraph 25.

(16) Paragraph 23.

(17) Paragraph 27 of the Opinion of Advocate General Elmer.

(18) Case C-263/97 The Queen v Intervention Board for Agricultural Produce, ex parte First City Trading and Others [1998] ECR I-5537, paragraph 41. See also paragraph 29 of my Opinion in the same case and the Opinion of Advocate General Jacobs in Case C-236/99 Commission v Belgium, [2000] ECR I-5657, I-5654 paragraphs 15 to

(33) .

(19) Case 5/88 Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, paragraph 19.

(20) Ibid., paragraph 20.

(21) Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, paragraph 15 and Case T-122/99 The Procter 8c Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) [2000] ECR II-269, paragraph 42.

(22) Case 24/62 Germany v Commission [1963] ECR 63, at p. 69.

(23) Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727, paragraph 17.

(2) S

(24) Stesse, cited at footnote 3 above, paragraph 17.

(25) Ibid., paragraph 17 and Joined Cases 37/73 and 38/73 Diamantarbeiders v Indiamex [1973) UCR 1609, paragraph 22.

(26) Ibid., paragraph 18.

(27) Casc C-202/90 Ayuntamiento ¡le Seiniin 119911 FCR I-4247, paragraph 18.