Judgment of the Court of 18 November 1975.

A — Observations of the Commission

After examining the Community rules concerning the use of certificate DD 1 for direct importation from one Member State to another and certificate DD 3 in other cases (Commission Decision of 5 December 1960) and the introduction of certificate DD 4 for agricultural products subject to intra-Community levies (Commission Decision of 17 July 1962) the Commission goes on to point out that Regulation No 13/64 establishes a common organization of the market in milk and milk products based in particular on the imposition of intra-Community levies which are lower, in order to ensure Community preference, than those imposed on products coming from third countries.

With regard to the first question, the Commission cites the judgment of the Court of Justice of 22 October 1970 (Case 12/70, Craeynest and Vandewalle v Belgium, [1970] ECR 905) and deduces that for the products in question, the obligation to use certificate DD 4 exclusively as from 1 November 1964 arises on the one hand from Regulation No 13/64, which was directly applicable as from 1 November 1964, and, on the other hand, from the Commission Decision of 17 July 1962 which is binding in all its aspects independently of national implementing measures. That decision, too, is directly applicable because it is unconditional and sufficiently clear.

National implementing provisions cannot therefore create rights or obligations but simply repeat those rights or obligations already laid down by directly applicable Community provisions.

In answer to the second question, the Commission maintains that the obligation to produce certificate DD 4 applies equally to the case where the date of the entry into force of Regulation No 13/64 falls between the date when the goods were exported from one Member State and the date when they were imported into another Member State. Regulation No 13/64, which came into force on 1 November 1964, introduced, on a temporary basis, a common organization of the market for milk products involving intra-Community levies which were, however, in order to maintain Community preference, fixed at a level lower than that of levies for imports coming from third countries. It was therefore essential that as from 1 November 1964 it could be established with certainty whether a product could benefit from the preferential intra-Community treatment introduced by Regulation No 13/64. Under the Decision of 17 July 1962, in particular Article 3 (2), certificate DD 4 alone is the document in proof for the application of the intra-Community levy system. The importing company could moreover have relied upon the second subparagraph of Article 3 (1) of that decision which provides, with the particular aim of protecting legitimate private interests, that certificate DD 4 may also be obtained after the goods to which it relates have been exported ‘if due to an involuntary error or omission, it is not produced when they are exported’.

With regard to the third question, the Commission observes that certificate DD 4 could only be used for goods ‘carried directly from the exporting Member State into the importing Member State’. The definition of this expression given in Article 2 (2) of the Decision of 17 July 1962 is identical to that given in Article 2 of the Decision of 5 December 1960 in respect of certificate DD 1. It is therefore clear that for agricultural products certificate DD 4 replaces certificate DD 1 in that the use of certificate DD 3 was prohibited for these products from the time when they became subject to intra-Community levies. Certificate DD 3, the issue of which is not subject to the verification required of goods subject to agricultural levies, does not in fact guarantee that the product in question complies with the conditions set out in Regulation No 13/64 which must be satisfied in order to benefit from the preferential intra-Community system.

B — Observations of the appellant in the main action

Unil, the appellant in the main action, contests the reference made by the Corte Suprema di Cassazione of Italy to the judgment of the Court of Justice of 22 October 1970 (Case 12/70, Craeynest and Vandewalle v Belgium). That case involved fraudulent imports giving rise to possible criminal sanctions against those responsible, while the present case involves imports of milk products, which undeniably come from Common Market countries, in accordance with the legislation in force.

Regulation No 13/64 solely established, as from 1 November 1964, a system of levies for milk products but did not issue any rule binding upon the Member States regarding the procedure and detailed rules to be followed in checking the Community origin of imported products. Moreover, the Commission Decision of 17 July 1962 did not place Member States under an obligation to adopt certificate DD 4 as the sole means of proving the Community origin of goods. The various certificates DD 1, DD 3 and DD 4 were created in order to facilitate and to harmonize the certification of the existence of the conditions necessary for benefit from the Community system. Nevertheless, the customs authorities remain free to require any other documents in proof of the Community origin of the imported products.

In the case in question there existed no Italian legislation nor Community rules requiring, as from 1 November 1964, the exclusive use of certificate DD 4. In addition, it was impossible for Unil to obtain certificate DD 4 since at the time of exportation, in October 1964, the customs authorities were only issuing certificates DD 1 and DD 3 for milk products, in accordance with the rules in force.

It is contrary to the spirit of the Community agreements to apply the rules laid down for imports coming from third countries to imports of products accompanied by certificates showing beyond all doubt their Community origin.

Examination of the second question emphasizes the unlawful nature of the customs authorities' refusal to accord Community treatment to the import in question. The goods were accompanied by a certificate DD 1 and by a certificate DD 3. This shows, in accordance with Article 2 of the Commission Decision of 5 December 1960, that the goods, in any case those covered by the certificate DD 3, were not transported ‘directly’, within the meaning of paragraph (2) of the abovementioned Article 2, from the exporting Member State to the importing Member State.

Article 2(1) of the Decision of 17 July 1962 provides that ‘the goods movement certificate form DD 4 may be used only if the goods to which it relates are carried directly from the exporting Member State into the importing Member State’. Paragraph (2) of that article defines the concept of ‘direct’ transport in terms identical to those used in Article 2 of the Decision of 5 December 1960 in respect of certificate DD 1. It must therefore follow that certificate DD 4 replaces certificate DD 1 solely for those agricultural products subject to intra-Community levies which are imported directly. Certificate DD 3 remains applicable to indirect transport.

C — Observations of the Italian Government

With regard to the first question the Italian Government observes that in its judgment of 22 October 1970 (Case 12/70, Craeynest and Vandewalle v Belgium) the Court has already given a sufficient reply. It follows from that judgment that the right to benefit from the preferential intra-Community system is subject to the production of certificate DD 4 and that Member States may not allow proof of Community origin or of the fact that the goods are in free circulation to be made by means other than the production of that certificate. A consequence of the requirement of uniformity regarding the method of proving Community origin in the various Member States is that the absence of national legislation ensuring the use of certificate DD 4 can only result in refusal to accord preferential Community treatment. Examining the second question the Italian Government points out that the Commission could, under the final subparagraph of Article 32 of Regulation No 13/64, have adopted temporary measures by means of the Management Committee procedure.

The Commisison did not make use of this possibility which, in the opinion of the Italian Government, shows that there was no need to correct the system.

Moreover, any doubtful cases, particularly the present case, could have been resolved at the request of the appellant by applying the second subparagraph of Article 3 (1) of the Decision of 17 July 1962 whereby, in cases of involuntary omission, certificate DD 4 can in exceptional cases be certified after exportation of the goods to which it relates.

With regarded to the third question the Italian Government believes that the Decision of 17 July 1962 excludes goods subject to agricultural levies from the sphere of application of the Decision of 5 December 1960 and subjects them to stricter rules for their admission to the preferential intra-Community system. However, that new system excludes indirect transport. This exclusion, which is also in force in sectors other than that of milk products, is a direct consequence both of the objective description of goods covered by a common organization of the market and of the nature of that common organization of the market, including intra-Community levies based on a direct comparison between prices charged in the exporting Member State and in the importing Member State respectively.

The Commission, represented by its Agent, Mr Maestripieri, the Italian Government, represented by its Agent, Mr Zagari, and the appellant in the main action, represented by Mr Rossi, presented oral argument at the hearing on 23 September 1975.

The Advocate-General delivered his opinion at the hearing on 15 October 1975.