C-98/83

VAN GEND & Loos NV, a company incorporated under Netherlands law, whose registered office is at Utrecht, represented by S. L. Būruma and L.J. Hopmans, Advocaten at the Hoge Raad [Supreme Court] of the 1 — Language of the Case: Dutch.

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N e t h e r l a n d s , with an address for service in L u x e m b o u r g at the C h a m b e r s of J. Loesch, 2 R u e G o e t h e (Case 9 8 / 8 3 ) ,

and

EXPEDITIEBEDRIJF W I M BOSMAN BV, a private c o m p a n y incorporated u n d e r N e t h e r l a n d s law, w h o s e registered office is at ' S - H e e r e n b e r g , represented by L . J . H o p m a n s , Advocaat at t h e H o g e R a a d of t h e N e t h e r l a n d s , with an address for service in L u x e m b o u r g at t h e C h a m b e r s of J. Loesch, 2 R u e G o e t h e (Case 2 3 0 / 8 3 ) , applicants, v

COMMISSION OF T H E EUROPEAN COMMUNITIES, r e p r e s e n t e d by A u k e H a a g s m a , a m e m b e r of its Legal D e p a r t m e n t , acting as Agent, with an address for service in L u x e m b o u r g at t h e office of Manfred Beschel, a m e m b e r of t h e Commission's Legal D e p a r t m e n t , J e a n M o n n e t Building, defendant,

JUDGMENT

Facts and Issues

I — Summary of facts and Regulation No 1430/79 (Official Journal written procedure L 161, p. 13).

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to Article 95 of the Rules of Procedure, B — Substance and to open the oral procedure without any preparatory inquiry. Summary of the applicants' observations

By order of 29 February 1984 the Court The applicants submit, first, that the (First Chamber), having noted that Cases Commission was in breach of its 98/83 and 230/83 dealt with related obligation to give the reasons for its subjects, joined the two cases for the decision, and secondly that the remission purposes of the oral procedure and the was wrongly refused. judgment. (a) They maintain that in order to meet the conditions laid down in Article 13 of Regulation N o 1430/79 it is necessary II — C o n c l u s i o n s of t h e p a r t i e s both to have acted in good faith and to be able to prove the existence of special Van Gend & Loos claims that the Court circumstances. However, they contend should declare the contested decision that in the statement of reasons for its void and make an appropriate order as decisions the defendant merely sets out to costs. the circumstances, the existence of which the applicants had proved, which showed Boşiman claims that the Court should that they had acted in good faith, and declare the contested decision void, or at omitted to mention the special circum­ least declare it to be of no effect, and stances which they had relied on. These make an appropriate order as to costs. special circumstances were the following :

The Commission contends that the deceit or fraud on the part of their Court should declare the applications clients; inadmissible, or at least declare them to be without foundation, and order the the issue of certificates of origin by the applicants to pay the costs. customs authorities in Egypt, Morocco, Turkey and Italy;

light during a subsequent investigation. informed of developments in the case is The examples now being quoted by the not relevant since a single telephone call Commission (see below) support that would habe been sufficient to allow the argument because it is only after the applicants to take steps to protect their event that it can be seen that too much interests. The defendant's arguments to customs duty has been paid. A handful the contrary do not justifiy the refusal of of examples does not suffice to show that a remission because the two criteria laid in practice subsequent checks are rarely, down in Article 13 have nothing to do

What charge to certain charities or re- Van Gend & Loos criticized was in fact exported. Those additional reasons the authorities' negligence at the time cannot be used to justify a decision that the goods were declared for the which itself contains an insufficient purpose of putting them into free circu- statement of the reasons on which it was lation. Van Gend & Loos emphasizes based. Moreover, compliance with such that according to information recently conditions was required neither during received from the Netherlands customs the procedure which led up to the authorities, there was at the time that adoption of the decision, nor in the the goods in question were declared decision itself. a presumption that the certificates produced did not state the correct origin Similarly, when the defendant claims

interested parties. It is clear that such event, since no such ground appeared in parties might suffer considerable damage the decision itself. owing to the absence of information. Even though the present level of The arguments concerning the passive knowledge and experience is not such as role of the customs and the fact that it to permit the defendant to define the was impossible to keep all officials situations referred to in Article 13, it

must determine in each individual case consequences for them. The applicants the grounds on which remission is not were not in the same position as the justified in a manner which is clear and representatives of the Netherlands who comprehensible both for the applicants took part in the meetings of the and for the Court. Committee on Duty-Free Arrangements and who, moreover, were under no obligation to support an application put (e) Even though they refer to an forward by the applicants. At national examination by the Committee on Duty- level, the procedure was limited to free Arrangements, the decisions at issue presentation of an application by the make no reference either to a proposal applicants and verification by the or to an opinion of that Committee, nor national authorities of the existence of do they indicate either the contents of sufficient ground for that application. any proposal or opinion of the Com- The applicants submit to the Court a mittee on Duty-Free Arrangements letter from the Netherlands Ministry of which might exist or the result of any Finance indicating the conditions which vote in the Committee, and it is thus the applications were required to meet. impossible to verify that the defendant Case 294/81, Control Data Belgium NV, complied with the procedure laid down in which the Court, in a judgment of 17 in Article 25 of Regulation N o 1430/79 March 1983, rejected the same argument in adopting its decision. In any event, in similar proceedings, can be dis- the defendant has infringed Article 5 of tinguished from the present case Regulation No 1575/80 and Article 190 inasmuch as the applicant in that case of the Treaty. was relying solely on an infringement of essential procedural requirements. In this case, neither the group of experts nor, a In exactly the same way as the procedural fortiori, the applicants were consulted. rules for determining which cases are Moreover, the applicants have relied covered by Article 13, the cases upon an infringement of the general themselves are to be determined in principles of law, which is more than accordance with the opinion of a group just an infringement of procedural of experts. Unlike the text of the draft requirements (judgment of 13. 7. 1966, regulation (Official Journal C 54, 6. 3. Joined Cases 56 and 58/64 Consten and 1976, p. 85) — on which the Com- Grundig v Commission [1966] ECR 299). mission is now basing its argument — the regulation in force provides that the procedure to be followed is that laid down in Article 25. However, Article 25 (g) The applicants invite the Com- refers to the procedure laid down in mission to produce written evidence that Article 9 in Regulation No 1798/75 the time-limits laid down in Articles 5 requiring the Commission to obtain the and 6 of Regulation No 1575/80 have opinion of a group of experts. Moreover, been observed. Even though the de- it is clear from in the preambles to Regu- fendant's letters were dated 11 January lation No 1430/79 and Regulation No 1983, that does not mean that they were 1575/80 that the Commission is obliged sent on the same date. to obtain that opinion.

circumstances is conditional upon the the sense of unusual circumstances, goods having been destroyed, delivered outside the control of the importer or free of charge to charities or re- exporter, the consequences of which, in exported. Although the opening words of spite of the exercise of all due care, Article 11 (1) show that that article could not have been avoided except at merely lays down detailed rules for the the cost of excessive sacrifice" (judgment cases referred to in Article 10, the of 17. 12. 1970 Case 11/70, Inter- defendant apparently now wishes to nationale Handelsgesellschaft [1970] ECR apply the conditions laid down in Article 1125). 11 to remissions granted on the basis of

No were entered in the accounts before 1 doubt experienced customs agents such July 1982 so that Article 13, as amended, as the applicants can detect forgeries, but does not apply to the present application. improper issue of certificates as a result It is only under Article 13 (3), as of the unlawful act of the customs auth- amended, that re-export can in fact be orities of the country, from which the imposed as a special condition, not under goods come or in which they originated Article 13 in the form in which it was is a circumstance entirely beyond their applicable in this case. control. Moreover, the fact that the certificates Avere invalid did not emerge (i) The applicants submit that the until after a particularly long in- wording of Article 13 of Regulation No vestigation carried out by the Nether- 1430/79 reflects the approach adopted lands authorities. by the Court in relation to the expression force majeure, as used in various regu- A customs agent has neither the means

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The has a current account. customs authorities are not required to carry out a thorough and systematic In the context of the plea of force investigation, but when the national majeure, it is important to note that, in authorities carry out an investigation in a a case such as the present one, the particular case because they suspect that Netherlands authorities granted a clients of the customs agents have remission of duty both on grounds of committed offences, they should act so equity and in the light of the special as to limit as far as possible the damage circumstances of the case in respect of suffered by third party undertakings. import duties to which Regulation No 1430/79 was not applicable on account ot the date on which it came into force. It was not a case of applying legislation Summary of the defendant's observations of a Member State which was sub- sequently replaced by Community rules, The defendant emphasizes that what but rather of granting a remission on gives rise to the obligation to pay import equitable grounds. The Court of Justice duties is the act of bringing certain has not only based its own decisions on goods into the Community's customs the practice of the national authorities territory. However, it may subsequently but has also recognized the principle of be discovered that the imported goods equity. have left the customs territory or have

It has must also be umforeseeable if the proved impossible until now to define in concept of force majeure is to be relied general terms the cases which fall into upon is to be found neither in the law of the residual category since the the Member States nor in the case-law of knowledge and experience necessary to the Court of Justice. do so are still lacking. Thus, cases falling into the residual category must be It is significant that the Netherlands defined by what is called the committee administration informed the applicants procedure.

In the relatively numerous cases which and that "the customs authorities could have been referred to the defendant have informed them earlier of their under Article 13 of the Council regu- suspicions". lation, the defendant has always followed the spirit of the Council regu- The defendant does not dispute the first lation, and consequently it has only argument. On the other hand, it granted remissions or repayments when, emphasizes in the third recital in the by reason of special circumstance, the preamble that good faith alone is not goods in question were no longer within sufficient if special circumstances have the customs territory, or had been placed not been shown to exist. under another customs procedure, placed In that connection,- the defendant states in free circulation, destroyed, and so on. firstly that a customs agent, since he In two cases, for example, duty was makes the declaration in his own name reimbursed which had been paid at the and on his own account, is himself time of importation of vehicles bought in responsible for the importation, which the United States but which did not implies that he is also liable for any comply with the legislation in force in defect in the certificates furnished on the United Kingdom and which, for that that occasion. The question of good faith reason, had to be re-exported. is independent both of the proof of special circumstances (because the latter In this case, there is no question of is a distinct condition) and of proof of the goods having been re-exported or liability. destroyed, nor of the application of a higher tariff than that provided for under Secondly, the defendant points out that the Common Customs Tariff; the goods if the arguments put forward by the were placed in free circulation in the applicants are sufficient to obtain a usual way and have remained in the remission, investigations carried out by Community's customs territory. More- the Member States after importation over, the import duty levied by way of would no longer have any purpose since the demand for additional duty is at the the demand for additional duty to which rate applicable to the goods, having such investigations could, in an appro- regard to their nature and their origin. priate case, give rise and which is the veiy purpose of such investigations could (a) With regard to the argument that no longer be made. the Commission's decision infringes the obligation to state the reasons on which it Finally, with regard to the argument was based, the defendant points out that advanced by Van Gend & Loos to the

It cannot therefore constitute a special cir- each case first of all to the applications cumstance. presented by the Netherlands authorities and also contain a detailed statement of The applicants complain that the the circumstances on the basis of which defendant has advanced reasons for its a remission of import duties is being decision before the Court that it did sought. Two of the arguments on the not state in the decisions themselves. basis of which the applicants are seeking However, the arguments put forward by die remission are mentioned, namely that the defendant before the Court which "the customs agent acted in good faith" describe in detail the practice which has

been followed until now are solely been put in free - circulation rather than intended to provide information which facts which already exist at the time might be useful in considering the the goods are so placed. The defendant application, and not to advance further points out, however, that it never grounds for the decisions. Not only was claimed that "remission of duty must be there no need to supply that information excluded if an investigation is carried out as grounds for the individual decision at after importation". issue, but the quantity of information

It should be emphasized, reasons put forward by the applicants. moreover, that it is not appropriate in an Their situation was, in fact, assessed in investigation which, like the one in this the light of the criteria laid down in case, was unusually long and com- Article 13 of Regulation No 1430/79. plicated to communicate information to When the defendant states that the persons directly or indirectly concerned. applicants' good faith is not disputed, Finally, the role of the customs auth- that does not mean that its existence is orities when they accept declarations is recognized but merely that that second the relatively passive one of establishing condition does not need to be considered whether or not the declaration is since the first has not been met. complete. In many cases, internal instr- uctions do not permit customs officers to (b) In their second argument the release information which may be in applicants dispute the defendant's their possession concerning pending contention that the grant of a remission investigations. would nullify the effect of checks regularly carried out after importation, on (d) The applicants point out next that the ground that repayment or remission the criteria used by the defendant in of import duties generally takes place applying Article 13 are not clear even precisely in connection with facts which though recourse must be had to the only emerge during subsequent checks. procedure laid down in that article to The defendant states that it is not clear define the situations to which it refers. from either the preamble to Regulation However, the defendant maintains that if No 1430/79 or the terms of the regu- it was in a position to identify criteria lation itself that that regulation was which could be used generally, it would intended to cover circumstances which certainly incorporate them in a regu- only emerged during subsequent in- lation; that is not yet possible.

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Moreover, Regulation No 1575/80 and not in the complete file on the matter was Article 25 of Regulation No 1430/79. submitted to the Committee. In its However, Regulation No 1575/80 does judgment of 17 March 1983 (Case not provide for an opinion to be 294/81 Control Data Belgium v Com- expressed by the Committee on Duty-Free mission [1983] ECR 911, paras. 16 and Arrangements or for a vote within that 17), the Court rejected the same committee, but only for a decision of argument in similar proceedings con- the Commission to be taken after cerning exemption from customs duties "consulting a group of experts composed for scientific apparatus on the ground of representatives of all Member States that the procedure laid down in the meeting within the framework of the relevant Community legislation had been Committee on Duty-Free Arrangements followed and that the applicant liad been to examine the case in question". In that able to state its arguments in full through connection, the second recital in the the national authorities.

The steps which must be taken to that end. defendant points out that the applicants According to the second paragraph of surely did not wish to state that the Article 13 of Regulation No 1430/79, requirements which the statement of recourse is to be had in such cases to the reasons for a decision must satisfy procedure laid down in Article 25, which depend on the type of action which in its turn refers to Article 9 (2) and (3) could subsequently be brought against of Regulation No 1798/75, and it is this that decision. regulation which requires the opinion

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produce written evidence that the time- that the risk is greater in regard to limits have been complied with, the certain types of goods or certain defendant points out that the ap- transactions. Moreover, a customs agent plications at issue were received on 11 must show all due diligence when he October 1982 and the decisions were concludes a contract involving his adopted on 10 January 1983, so that the making a declaration in his own name time-limit of three months from the date but on behalf of another person. There on which the applications were received are other ways of making such has been complied with. Those dates are declarations, such as an agency in fact mentioned in the decisions. agreement under which the principal Notice of the decisions was given to the remains liable for payment of whatever Netherlands on 11 January 1983 and was import duty is due. The customs agent thus well within the 30 day period can also require that security be put up, required by the rules governing notice. or he can take out insurance. His fees The Permanent Representation of the should also take account of the risk of Netherlands to the Communities loss which he runs. The fact that acknowledged receipt of the decisions on Netherlands legislation makes the the same day. The defendant has applicants themselves liable is not submitted documents to the Court in sufficient in itself to warrant recognition support of its statements. of the existence of special circumstances.

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in force, particularly as regards any It is not possible to draw from the change in the amount of import duty examples cited by the defendant a charged on these goods". Having regard general rule to the effect that special to the very large number of declarations circumstances only exist in cases of that made each day, the relatively few staff kind. It is not correct, therefore, to and the need to complete customs for- maintain that henceforth the Commission malities rapidly, particularly at frontiers, intends to extend the conditions laid it is practically impossible to check the down in Article 11 of Regulation No validity of declarations immediately. 1430/79 to applications under Article 13. (i) The applicants appear to think that the only reason why the defendant considers that there are no special IV — Oral procedure circumstances in this case is that the imported goods were neither destroyed, nor delivered free of charge to a charity At the sitting on 5 April 1984 oral nor re-exported. argument was presented on behalf of the applicant by L J. Hopmans and on behalf However, the defendant did not rely of the Commission of the European upon any such negative criterion. Rather, Communities by A. Haagsma, acting as it considered whether the arugments put Agent. forward in the Netherlands application in support of the contention that special The Advocate General delivered his circumstances existed were adequate. opinion at the sitting on 17 May 1984.

Decision

1 By applications lodged at the Court Registry on 30 May and 10 October 1983 respectively Van Gend & Loos NV, whose registered office is at Utrecht, and Expeditiebedrijf Wim Bosman BV, whose registered office is at 's-Heerenberg, requested the Court pursuant to the second paragraph of Article 173 of the EEC Treaty to declare void two decisions adopted by the Commission on 10 January 1983 concerning applications made by the under- takings to their national authorities for remission of import duties previously collected by the Netherlands authorities.

s In the two decisions of 10 January 1983 which are being challenged in^this case, the Commission held, for reasons stated in identical terms, that "the customs agent, by declaring the goods with a view to putting them into free circulation in his own name but on behalf of another, assumed an obligation to pay any import duty which might be payable in respect of the goods. The fact that the customs agent, in good faith, presented movement certificates and T 2 L documents which were subsequently found to be invalid does not constitute special circumstances within the meaning of the first paragraph of Article 13 of Regulation N o 1430/79, such as to justify remission of import duty legally due. The concept of special circumstances is independent of the concept of good faith referred to in the first paragraph of Article 13 of the said regulation. Both conditions must be met before the remission applied for may be granted. Furthermore, remission in those circumstances would nullify the effect, when the declaration with a view to putting the goods into free circulation is made by the customs agent in his own name, of subsequent checks carried out by the customs authorities of the Member States which show that a movement certificate or a T 2 L document on the basis of which a preferential rate of duty has been levied is not valid". As regards Van Gend & Loos, the Commission stated further that " n o fault whatsoever can be found with the way in which the Netherlands customs authorities carried

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out the investigation which led to the discovery of the offence which had been committed". Consequently, the Commission refused both applications.

9 It may be seen from the preambles to the decisions at issue, which are not contested on this point, that the required procedure was followed in this case. That procedure allowed the applicants to put all their arguments to the Netherlands authorities. All the documents on the file were available both to the Committee on Duty-Free Arrangements and to the Commission. In those circumstances, the complaint based on a breach of the procedural requirements must be dismissed.

io Next, the applicants contend that the contested decisions did not dispute the existence of the special circumstances relied on by the applicants to justify

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the remission of customs duty. In particular, the statement of reasons for the decisions makes no reference to the fraud committed by the applicant's clients, nor does it refer to the fact that the false certificates were issued by the customs authorities of the countries of origin and that the applicants thus had no reason to suspect that those certificates were invalid.

u The submission based on breach of the Commission's obligation to give reasons for its decisions,must therefore be rejected.

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T h e s u b s t a n c e of t h e case

is The applicants' principal argument contests the interpretation put forward by the Commission of the "special circumstances" referred to in Article 13 of Regulation No 1430/79. According to the applicants, the meaning of that term is the same as that given by the Court to the term force majeure in Community law. The applicants submit that the Court has held that that term is not limited to absolute impossibility but must be understood in the sense of unusual circumstances, outside the control of the importer or exporter, the consequences of which, in spite of the exercise of all due care could not have been avoided except at the cost of excessive sacrifice. In this case, they contend, the fact that the certificates issued were invalid was due to an unlawful act on the part of the customs authorities of the country of consignment and only became apparent after a particularly long investigation carried out by the Netherlands authorities and which a customs agent would have had no means of carrying out.

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is With regard to the applicants' complaint that the Commission was obliged by the second paragraph of Article 13 to indicate at the outset in its decision the criteria which it intended to use in applying the aforementioned article, it must be observed that it is clear from the first paragraph of the above- mentioned Article 13 that until such time as a list of the special circumstances within the meaning of that provision can be drawn up, it is for the Commission to indicate in each case whether or not such circumstances exist and to give reasons for its decision on that point. The defendant has in fact done so. The defendant was therefore not obliged, in that situation, to draw up a list of criteria pursuant to the second paragraph of that provision.

i9 Finally, Van Gend & Loos complains that the national authorities showed a lack of due diligence in not verifying the certificates at issue when the declaration was made at the time of importation. Because they did not do so, the authorities allowed the applicant to entertain a legitimate expectation that the documents furnished were authentic. The Commission should have taken account of that fact.

20 That complaint must also be rejected. A customs agent cannot entertain a legitimate expectation with regard to the validity of certificates by virtue of the fact that they were initially accepted by the customs officers of a Member State. The role of those officers in regard to the initial acceptance of declarations in no way prevents the customs authorities of the Member States from subsequently checking their veracity, nor does it prevent effect being given to the consequences of those checks, as is clear in particular from Article 10 (2) of Council Directive 79/695 of 24 July 1979 on the harmo- nization of procedures for the release of goods for free circulation (Official Journal L 205, p. 19).

hereby:

1. Dismisses the applications;

2. Orders the applicants to pay the costs.

M a c k e n z i e Stuart Bosco Koopmans

Delivered in open court in L u x e m b o u r g on 13 N o v e m b e r 1984.

For the Registrar H . A. Rühi G. Bosco Principal Administrator President of the First Chamber