C-283/82

JUDGMENT OF THE COURT (THIRD CHAMBER) 15 DECEMBER 1983 '

Papierfabrik Schoellershammer Heinrich August Schoeller & Söhne GmbH & Co. KG v Commission of the European Communities

( R e p a y m e n t of import duties)

Case 283/82

European Communities — Own resources — Repayment or remission of import or export duties — Regulation No 1430/79 — General provision based on equitable grounds — Scope) (Regulation No 1430/79, Art. 13)

Article 13 of Regulation No 1430/79, by question, which are applicable where virtue of which import duties may be goods have been erroneously entered for repaid or remitted in special circum- free circulation, were not drawn up to stances where no negligence or cover the particular situation of an deception is attributable to the person undertaking which has been unable to concerned, appears, in the light of the benefit from those provisions because the preamble to the regulation, to be a error was discovered only after re-expor- general equitable provision designed to tation of the goods and which was thus cover situations other than those which unable to complete the necessary had most often arisen in practice and for formalities to correct the original which special provision could be made declaration, there is no reason in such a when the regulation was adopted. Since case to exclude the possibility of Articles 3 and 4 of the regulation in applying Article 13.

APPLICATION requesting the Court to declare void the Commission's decision of 9 July 1982 establishing that the repayment of import duties is not justified in an individual case,

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

composed of: Y. Galmot, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: G. F. Mancini Registrar: P. Heim

gives the following

JUDGMENT

Article 13 of the same regulation The German customs authorities refused provides that import duties may be the applicant the benefit of Articles 3 and repaid or remitted in situations resulting 4 of Regulation No 1430/79, stating that from special circumstances in which the duty could not be repaid in that no negligence or deception may be particular case because the goods had attributed to the person concerned. The not been exported under customs provisions for the implementation of that supervision. The applicant therefore article are laid down in Commission asked for Article 13 of the regulation Regulation (EEC) No 1575/80 of 20 to be applied and that request was June 1980 (Official Journal 1980, L 161, forwarded to the Commission, which p. 13). If the national authority considers gave its decision on the basis of the that the application submitted by the opinion of the experts meeting within the person concerned is supported by Committee on Duty-Free Arrangements. sufficient evidence, it submits the case to At its meeting of 19 May 1982 the the Commission, which takes a decision majority of the delegates considered that after consulting a group of experts there were no grounds for granting the composed of representatives of all the applicant's application of 9 November Member States meeting within the 1981. In their opinion, the case sub- framework of the Committee on Duty- mitted must be examined in the light of Free Arrangements. the provisions of Articles 3 and 4, which precluded the application of Article 13. The Commission notified its negative In October 1981 the applicant entered decision to the Government of the for free circulation five consignments of Federal Republic of Germany on 9 July drawing paper from Switzerland and 1982. paid customs duties on them. The paper had been purchased in order to fulfil an order which exceeded the applicant's By an application received at the Court production capacity. The paper was Registiy on 25 October 1982, the intended for export to Japan and the applicant brought an action under Article only operation carried out by the 173 of the EEC Treaty for a declaration applicant was to affix new labels to the that that decision was void. consignments and then to load them immediately into containers which were shipped to Yokohama. The written procedure followed the normal course. According to the applicant, the con- signments of paper were entered for free Upon hearing the report of the Judge- circulation as a result of an error attri- Rapporteur and the views of the butable to the very short period between Advocate General, the Court decided to the arrival of the goods and their open the oral procedure without any reshipment, the unusual nature of the preparatory inquiry and assigned the operation and lack of experience on the case to the Third Chamber.

1. Dismiss the application; When the benefit of Article 13 is withheld on the ground of negligent conduct, account should be taken only 2. In the alternative, dismiss the claim of gross negligence, and there is no for a declaration and refer the case question of that in this case. back to the Commission for more extensive consideration; The Commission contends that Article 13 3. Order the applicant to pay the costs. is not applicable to this case. That article applies only to situations other than those which are governed by the preceding provisions, that is to say situations which could not, at the time of III — S u b m i s s i o n s and argu- the adoption of the regulation, be ments of the p a r t i e s covered by specific rules. The applicant's situation is governed by Articles 3 and 4 in Section B of Title I, which deal with The applicant alleges that it may be goods erroneously entered for free circu- inferred from the statement of reasons lation. The applicant could not claim the accompanying the decision of 9 July benefit of those provisions since it had 1982 that no detailed investigation of the failed immediately to enter the goods facts was carried oui. The decision was "for the customs regime for which they taken on a general basis without any were intended" and had even neglected attempt to establish whether the person to expon the goods under customs concerned had acted negligently. Thus supervision. In order to be entitled to no account was taken of the special affix labels to the goods the applicant circumstances of the case; that con- required either a declaration from a stitutes a misuse of powers. customs warehouse or an authorization

In the Commission 's view, Articles 3 and If the Court does not agree with the 4 apply to all cases in which goods are Commission's opinion, it should refer the erroneously entered for free circulation, case back to the Commission so that it even if the error stems from ignorance of may exercise its power of appraisal under the rules or confusion between pro- Article 13. The claim for a declaration cedures with which the person concerned that the repayment of the import duties is familiar. Errors deriving from a lack of is justified should be dismissed. knowledge of customs provisions are in fact the most typical case to which those articles apply· The Committee on The applicant replies that Articles 3 and 4 Duty-Free Arrangements considered it of the regulation are not applicable, first, dangerous to apply those articles in cases because in this case there was no sub- where the error was discovered only stantive error but rather ignorance of after re-exportation of the goods. The procedures and, in the second place, Commission makes clear that it has not

JUDGMENT OF 15. 12. 1983 — CASE 283/82

expressed any view as to whether the IV — Oral procedure applicant acted negligently. The Commission claims that since the At the sitting on 30 June 1983 oral Court is dealing with this case by virtue argument was presented by W. Garsky of Article 173 of the Treaty it cannot for the applicant and by C. Bail and substitute its own assessment for that of A. Prozzillo for the Commission. the Commission and that in the event of disagreement as to the interpretation of The advocate General delivered his Article 13 the Court should refer the opinion at the sitting on 27 October case back to the Commission. 1983.

SCHOELLERSHAMMER v COMMISSION

that it was included in the regulation because it was impossible to determine precisely in advance, owing to the multifarious and mutable nature of circumstances, all the cases which must be provided for.

4 The Commission contests that interpretation of Article 13. In its opinion, Article 13 applies only to situations other than those governed by the preceding sections of the regulation; the applicant's situation falls within Articles 3 and 4 and it cannot therefore benefit from Article 13. It is for that reason that the Commission did not consider in detail the question whether the applicant had been negligent, notwithstanding the view to that effect expressed by the delegations of several Member States. The Commission suggests that if the Court does not share its opinion it should refer the case back to the Commission to enable it to exercise its power of appraisal under Article 13.

s In support of its interpretation of Article 13 the Commission refers to the amendment made to Regulation No 1430/79 by Council Regulation No 1672/82 of 24 June 1982. The new Article 13 (2) extends the possibility of repayment to cases where the person concerned failed to comply with the prescribed procedural requirements. In the Commission's view, that proves that the legislature considered that the previous version of the regulation did not allow repayment in such circumstances.

s Consequently, the contested decision, which rests on the finding that the applicant's case does not fall within the scope of Article 13 of Regulation N o 1430/79, is based on legally incorrect grounds. It must therefore be declared void.

9 It is incumbent upon the Commission, by virtue of the first paragraph of Article 176 of the Treaty, to reconsider the applicant's case with a view to deciding whether it fulfilled the conditions laid down by Article 13 of Regu- lation N o 1430/79 and to consider in particular whether there are any circumstances indicating negligence on the applicant's part.

io However, the applicant's claim that the Court should declare that the repayment of D M 24 703.96 in respect of import duties is justified manifestly exceeds the powers conferred on the Court by Article 173 of the EEC Treaty and must therefore be dismissed as inadmissible.

Costs

n Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. Since the Commission has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

Galmot M a c k e n z i e Stuart Everling

Delivered in open court in L u x e m b o u r g on 15 D e c e m b e r 1983.

J. A. P o m p e Y. Galmot Deputy Registrar President of the Third Chamber

OPINION OF MR ADVOCATE GENERAL MANCINI D E L I V E R E D O N 27 O C T O B E R 1983 '

Mr President, The facts are as follows. To enable it to Members of the Court, meet an order which exceeded its pro- duction capacity, the applicant imported 1. The Court is asked to adjudicate in five consignments of drawing paper from an action brought by Papierfabrik Switzerland, entering them for free circu- Schoellershammer Heinrich August lation at the Düren Customs Office and Schoeller & Söhne GmbH & Co. KG paying the appropriate duty of DM [hereinafter referred to as "Schoellers- 24 703.96 (between 5 and 15 October hammer"] on 21 October 1982 for (a) a 1981. However, the goods were not declaration that the Commission's intended for domestic consumption; they decision of 9 July 1982 relating to remained on Community customs terri- proceedings under Article 13 of Regu- tory for the time required for new labels lation (EEC) No 1430/79 regarding the to be affixed and for them to be loaded repayment of import duties is void and into containers belonging to the shipping (b) a declaration that the repayment of company which was to transport them to those import duties is justified in the Japan (between 6 and 21 October 1981). circumstances of the case. By application dated 9 November 1981

I — Translated írom lhe Italian.