CJEC, 1st chamber, March 28, 1979, No 179-78

The court

1 By a judgment of 5 june 1978, which was received at the court registry on 25 august 1978, the tribunal de grande instance, montpellier, deuxieme chambre correctionnelle ( second criminal chamber ), referred two questions to the court of justice for a preliminary ruling under article 177 of the eec treaty.

2 These questions were raised in the context of a prosecution brought by the procureur de la republique ( public prosecutor ) and the administration des douanes ( customs administration ) against the Rivoira associates.

3 In december 1970 and december 1971 the latter imported into france various consignments of table grapes of spanish origin which were dispatched from italy, where the grapes were in free circulation.

4 Upon importation into france, the said consignments were accompanied by the certificate of the istituto nazionale per il commercio estero certifying that the goods were in conformity with the quality standards and stating that they were of italian origin.

5 At the time of the importation the bilateral quota fixed by france for grapes imported from spain had been exhausted.

6 Following a check carried out by the french customs authorities the Rivoira associates were charged with having imported prohibited goods by means of a false declaration of origin and on the basis of false or inaccurate documents.

7 Having been convicted and ordered to pay fines in their absence, the Rivoira associates appealed, which led the national court to ask the following preliminary questions:

' ' 1. Whether, according to the provisions of community law applicable in 1970 and 1971, the fact that france had lawfully fixed a bilateral quota for importations of spanish grapes into france between 1 july and 31 december of each of those years gave to france the right to prohibit, in respect of the same periods, the importation of like spanish grapes from italy where they had been in free circulation, without france having previously requested and obtained authorization from the commission of the eec in brussels under article 115 of the treaty.

2. If question 1 is answered in the negative, whether the fact that the spanish grapes imported into france from italy during the above-mentioned periods were declared to be italian entitles france to consider such declaration as an infringement of french customs legislation attracting the criminal penalties provided for by the code des douanes ( customs code ) in respect of false declarations made in order to effect prohibited imports. ' '

Question 1

8 By a judgment of 30 november 1977 given in case 52-77 cayrol v Rivoira ( 1977 ) ecr 2261, the court, interpreting article 1 of regulation n°2513-69 of the council of 9 december 1969 on the co-ordination and standardization of the treatment accorded by each member state to imports of fruit and vegetables from non-member countries ( journal officiel n°l 318, p. 6 ) and articles 1 and 11 of annex i to the agreement between the eec and spain which was the subject of regulation n°1524-70 of the council of 20 july 1970 ( official journal, english special edition, second series, i. External relations ( 1 ), p. 269 ), ruled that in 1970 and 1971 member states could continue to apply to table grapes of spanish origin during the part of the year between 1 july and 31 december quantitative restrictions in existence prior to regulation n°2513-69.

9 However, it follows from the wording of article 1 ( 1 ) of regulation n°2513-69 that this power of the member states was limited to direct importation from non-member countries of the products concerned.

10 The said article 1 could not have covered the application by a member state of restrictions or prohibitions on the importation of products in free circulation within the community from other member states, because such an ambit would have constituted a derogation from the fundamental rules of the treaty on free movement of goods.

11 Only article 115 of the treaty gives the commission the power to authorize the member states to take protective measures, inter alia in the form of derogations from the principle of free movement of goods, against products originating in non-member countries and put into free circulation in one of the member states.

12 Except where the substantive and procedural conditions laid down in article 115 are fulfilled, a member state cannot make the introduction into its territory of goods put into free circulation in another member state subject to the requirement of an import licence.

13 It follows that the answer must be that in 1970 and 1971 a member state did not have the right to prohibit the importation of table grapes of spanish origin but coming from another member state in which that product was in free circulation without previously having requested and obtained authorization from the commission in accordance with article 115 of the treaty.

Question 2

14 In so far as this question is to be understood as a supplement to question 1, the answer must be that a criminal penalty attaching to a measure of restriction applied to the importation into one member state of products put into free circulation in another member state is as incompatible with community law as that restriction itself.

15 However, the question can be understood as seeking to ascertain whether community law precludes the application of the criminal penalties laid down against false declarations where it is established that those false declarations were made in relation to an importation which, in itself, could not be the subject of a prohibition or restriction.

16 At the time when the relevant events occurred, the member states were entitled to request the production of certain documents upon importation of products put into free circulation in another member state in order to establish the origin of those products or to monitor the movement of goods.

17 Such a request is not incompatible with the prohibition in article 30 of the treaty of all measures having an effect equivalent to quantitative restrictions on imports.

18 However - as was held in the judgment of 15 december 1976 in case 41-76 donckerwolcke v procureur de la republique ( 1976 ) 2 ecr 1921 - such a requirement would fall under the prohibition contained in article 30 if the importer were required to declare with regard to origin, something other than what he knows or may reasonably be expected to know, or if the omission or inaccuracy of the declaration were to attract penalties disproportionate to the nature of the contravention.

19 In particular ' ' the criminal penalties provided for by the code des douanes in respect of false declarations made in order to effect prohibited imports ' ' cannot be applied without regard being had to the fact that the present case did not concern prohibited imports.

20 Therefore the answer must be that, although the fact that spanish grapes imported into france from italy have been declared as being of italian origin may in appropriate cases give grounds for the application of the criminal penalties provided against false declarations, it would be disproportionate to apply without distinction the criminal penalties provided in respect of false declarations made in order to effect prohibited imports.

Costs

21 The costs incurred by the commission and the french government, which have submitted observations to the court, are not recoverable.

22 As these proceedings are, so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, costs are a matter for that court.

On those grounds,

The court ( first chamber ),

In answer to the questions referred to it by the tribunal de grande instance, montpellier, by a judgment of 5 june 1978, hereby rules:

1. In 1970 and 1971 a member state did not have the right to prohibit the importation of table grapes of spanish origin but coming from another member state in which that product was in free circulation without previously having requested and obtained authorization from the commission in accordance with article 115 of the treaty.

2. Although the fact that spanish grapes imported into france from italy have been declared as being of italian origin may in appropriate cases give grounds for the application of the criminal penalties provided against false declarations, it would be disproportionate to apply without distinction the criminal penalties provided in respect of false declarations made in order to effect prohibited imports.