C-113/81

JUDGMENT OF THE COURT (FIRST CHAMBER) 27 MAY 1982 '

Otto Reichelt GmbH v Hauptzollamt Berlin-Süd (reference for a preliminary ruling from the Finanzgericht Berlin) (Customs duties: Repayment on equitable grounds)

Cue 113/81

1 . European Communities — Own resources — Customs duties unduly levied — Remission on equitable grounds — Application of national law — Conditions and limits

2. European Communities — Own resources — Repayment or remission of import or export duties — Regulation (EEC) No 1430/79 — Retroactivity — None (Council ReguLtion (EEC) No 1430/79)

1. In the absence of relevam Community 2. The provisions of Regulation No legislation, a national customs 1430/79 on the repayment or authority may apply the provisions of remission of impon or expon duties iu national law to a claim for do not apply to a decision concerning remission on equitable grounds of the remission of customs duties customs duties paid in excess of the adopted bv the national customs auth- amount due. The conditions for such orities before the entry into force of remission must be the same as those the regulation. applied to claims for the remission of charges imposed by national law.

HAUPTZOLLAMT BERLIN-SÜD [Principal Customs Office, Berlin South]

on the interpretation of Community law, in particular, Article 17 of Council Regulation (EEC) N o 1430/79 of 2 July 1979 on the repayment or remission of impon or expon duties (Official Journal 1979, L 175, p. 1),

T H E C O U R T (First Chamber)

composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges,

Advocate General: S. Rozes Registrar: J. A. Pompe, Deputy Registrar

gives the following

coffee, which was subject at the time to 2. Subsequently the plaintiff in the customs duty at the rate of 5%, at the main action brought an action before the rate of 7°/o and paid the defendant the Finanzgericht Berlin seeking an order corresponding amount. The defendant compelling the defendant to reconsider did not immediately notice the error, nor its application for the remission of duty. was it discovered during an external It claimed that its application fulfilled the audit which was commenced on 31 May conditions for remission on equitable 1977 and which covered the period from grounds of customs duty overpaid.

Community law. The errors in its The applicant therefore submitted an customs declarations, which remained application on 9 February 1979 for remission of the duties, the sum undetected by the defendant for 23 concerned being DM 255 027.63, as a months, were excusable in view of the result of which the defendant refunded profusion of customs provisions. It was part of the excess duty amounting to not possible for the increased duty to be DM 103 240.34.

The defendant rejected the incurring any financial loss. application by a decision of 6 April 1979, relying upon the Įudgmeni given bv the By an order dated 2 April 1981 the Court on 28 June 1977 in Case 1Í8/76 Finanzgericht referred the following to the effect that a national customs question to the Court for a preliminary authority is not entitled to apply the provisions of its national law to an ruling pursuant to the second paragraph application for exemption, on grounds ot of Anicie 177 of the Treaty: natural lusuce. from charges due under "Does Community law, in particular Communitv law. in so far as to apply Anicie 27 ol Council Regulation ( EEC i national law would alter the effect of the No 143C/79 ot' : julv 1979 (Official Community rules relating to the basis of Journal, L 175, p. 1), prohibit the assessment, the manner of imposition or repavment under national revenue law the amount of the charge in question (in this case Anicie 227 of the Abgaben- ([1977] ECRp. 1177). ordnung [Revenue Code] 1977; ot

customs duty overpaid but no longer By order of the Court of 26 October subject to appeal, in cases entered into 1981 the case was assigned to the First the accounts before 1 July 1980?" Chamber pursuant to Article 95 (1) and (2) of the Rules of Procedure. In the grounds of the order making the reference the Finanzgericht points out that the principles which emerge from II — Summary of the written the decisions of the Court of Justice o b s e r v a t i o n s s u b m i t t e d to

Treaty. It points out that under Article Community law is also affected by 227 of the Abgabenordnung remission of the application of a national customs duty may be permissible on equitable rule even if the repayment objective grounds if the defendant has in question is merely that of a sum substantially contributed to the loss of considered objectively by Com- entitlement and if the plaintiff was munity law as not due. responsible merely for an excusable error. As to Point (a)

1978. On hearing the repon of the ludge- Rapponeur and the views of the The Commission points out, first, that Advocate General the Coun decided to there is no provision in the regulations open the oral procedure without any referred to above which justifies the preparator.- inquin. assumption that they have retroactive

effect, even in the sense that they may aforementioned regulation and Council apply to events which occurred prior to Regulation No 1687/79 of 24 July 1979 their entry into force. It concedes that on the post-clearance recoven' of import Regulation No 1575/80, which lays duties or export duties which have not down detailed rules for the remission on been required of the person liable for equitable grounds provided for in Article payment on goods entered for a customs 13 of Regulation No 1430/79, contains procedure involving the obligation to pay primarily rules of a procedural nature. such duties (Official Journal, L 197, However, the principle that in the p. 1). It recalls that in the observations absence of special provision new pro- submitted by it in Joined Cases 212 to cedural rules shall apply even to events 217/80 it put forward with regard to already in progress prior to their entry that regulation an argument similar to into force cannot be relied upon in the that which it puts forward in the present light of the regulations in question. instance. As in the case of Regulation No 1697/79 the Committee on Duty- Free Arrangements adopted a unanimous decision to the effect that Regulation No The procedural provisions contained in 1430/79 could not apply to duties Regulation No 1575/80 cannot be entered in the accounts prior to 1 July divorced from the substantive provisions 1980. of Regulation No 1430/79. The two regulations form a new and comprehensive body of rules which is intended to be substituted at a specific date for national rules in that sphere As to Point (b) which had hitherto differed considerably. In those circumstances the presumption that the new rules of procedure are an improvement on the old cannot apply As to the conditions governing the with regard to the entirety of the new application of a national equitable rule rules, in which the procedural rules are the Commission refers first to the recent indissolubly bound up with the sub- case-law of the Court of Justice to the stantive provisions. effect that the application of national rules is permissible where there are no appropriate provisions of Community law provided that for claims based on Furthermore, if the new rules were to be Community law the national rules are applied to duty which was determined not less favourable than for similar prior to 1 July 1980 considerable uncer- claims based on infringements of tainty would arise as to the law, and this national provisions (see for instance, would affect not only national legislation inter alia, Case 130/79, Express Dairy under which the conditions for Foods[l9iC] ECR 18S7). repayment in force before 1 July 1983 were more restrictive than those provided for under Regulation No 143C/79, but also the more liberal legislation in force in certain of the However, the application of national law Member States. cannot result in altering the scope of anv provision of Communitv law ( see Case 40/69, Bollmann [1970] ECR 69 and Case 74/69, Krohn [197C] ECR 451). In Finally, the Commission emphasizes the Case 18/72 (Granano [1972] ECR 1163) parallel which exists between the and Case IlS/"t> (Balkan [1977] ECR

1177) the Court followed that principle with effect from 1 January 1978 bv precisely in the case of national equitable Council Regulation No 2891/77 of 19 rules, although those rules were relied December 1977 (Official Journal, L 336, upon in both cases in respect of duties p. 1). That does not prevent the which had been determined by the competent department of the Member proper application of Community law. State in question from revising, pursuant To grant a remission of such duties on to Articles 1 and 2 of each of the above- the basis of a national equitable rule mentioned regulations, the own would therefore have amounted to an resources established in accordance with arbitran· intervention directly affecting the relevant national provisions laid the scope of Community law. down by law, regulation or

It points out, however, that the corresponding rights based on provisions conditions governing the remission of of national law. such duties on equitable grounds under national law must not be more generous That aspect may call for consideration of than those governing similiar applications whether the plaintiff has been able to for repayment of duties imposed by pass on to its customers the customs national law. duties overpaid by it, in which case it In the same context, the Commission will have suffered no damage. observes that the amounts claimed by the plaintiff in the main action, the calcu- lation of which is not technically open to Ill — Oral p r o c e d u r e obiection. form pan of the Community's own resources by virtue of Regulation At the sitting on 4 February 1982, the No 2/71 of the Council of 2 January Commission of the European 1971 implementing the Decision of 21 Communities, represented by Peter April 197; on the replacement or Karpenstein, Legal Adviser to the financial contributions from Member Commission, presented oral argument. States by the Community's own

REICHELT v HAUPTZOLLAMT BERLIN-SÜD

Decision

1 By an order dated 2 April 1981, which was received at the Court on 11 May 1981, the Finanzgericht Berlin referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Community law, in particular Article 27 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of impon or export duties (Official Journal 1979, L 175, p. 1).

The question was raised in connection with an action brought by a company specializing in the retail grocery trade against the refusal of the German customs authorities to remit on equitable grounds customs duties overpaid.

3 The order making the reference states that in 1977 and 1978 the company in question paid impon duty on raw coffee at a rate of 7 %, whereas the rate applicable at the time was only 5 °/c as a result of a suspension of duty. The competent customs authorities repaid pan of the amount overpaid but refused to repay the rest on the ground that the period prescribed for the repayment of customs duties under the relevant German legislation had expired. The company then claimed, under Anicie 227 of the Abgaben- ordnung [German Revenue Code] in the version in force as from 1 January 1977, the remission on equitable grounds of the amount outstanding.

4 The customs authorities refused to allow it the benefit of the German equitable rules on the ground that it was precluded from doing so by Communitv law. In that regard, thev relied on the judgment of the C o u n of 2S June 1977 in Case 118/76 (Balkan Import-Export [1977] ECR 1177). In the action which it brought against that decision the company contended that the judgment cited above did not preclude the remission of customs duties overpaid.

s In those circumstances, the rules of Community law relating to the basis of assessment, the manner of imposition or the amount of customs duty are in no way affected by the application of a provision of national law concerning the remission of customs duty on equitable grounds, provided however that the conditions for such remission are the same as those applied to claims for the remission of charges imposed by national law.

i: That being the position in the absence of relevant provisions of Community law, it is appropriate to consider whether Regulation N o 1430/79, Article 1 of which lavs down the conditions under which the competent authorities are to repay or remit impon or export duties, applies to the case referred to by the national court.

u The contested decision whereby the customs authorities refused to apply Anicie 227 of the Abgabenordnung was adopted on 6 April 1979. Regulation

RZICHELT v RttJPTZOLlAMT BERUN-SCD

No 1430/79 entered into force on 1 July 1980 in accordance with Article 27 thereof. It does not contain any transitional provisions.

u Thus the question raised by the national court seeks in effect to ascertain whether Regulation N o 1430/79 has retroactive effect in the sense that its provisions are applicable to a decision on the remission of customs dun- adopted by the national customs authorities before 1 July 1980.

JUDGMENT OF 27. 5. !982 — CASE IIJ/81

Costs

i7 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in 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, the decision on costs is a matter for that court.

On those grounds,

T H E C O U R T (First Chamber),

in answer to the questions submitted to it by the Finanzgericht Berlin by order of 2 April 1981, hereby rules: