C-244/85

Mr President, The fact that the applicants contest the Members of the Court, applicability of monetary compensatory amounts in this case gives rise to a preliminary question: whether a Commission decision refusing to allow the remission of import or export duties on The actions brought by Cerealmangimi SpA equitable grounds may be challenged on the and Italgrani SpA in respect of the ground that the national authorities' Commission's decision of 22 March 1985 decision to impose such duties was unlawful. refusing to allow the remission of monetary compensatory amounts with regard to exports by those undertakings to Belgium and France raise essentially the following two legal questions: In favour of the admissibility of such a submission it may be argued that the contested decision is based on the premise — which the Commission 1. Are monetary, compensatory amounts endeavours to prove in a detailed payable in respect of products (in this manner — that monetary compensatory case durum wheat) exported from Italy amounts were in fact payable for the exports to other Member States after having been in question. It might be said that if the imported from non-member countries Commission has first established the under inward processing arrangements existence of a customs debt before adopting involving equivalent compensation and a decision refusing to apply Article 13 of prior exportation of processed cereal Regulation No 1430/79 in favour of the products (in this case durum-wheat meal) applicants, the latter should logically be able from Italy to non-member countries? to seek the annulment of that decision by contesting the cogency of the reasoning upon which it is based. If it could be shown that the monetary compensatory amounts were not in fact payable, the decision would 2. Since the Italian customs authorities had be based on a mistake of law and ought initially decided that in such cases consequently to be annulled. monetary compensatory amounts were not payable, do the circumstances of this case amount to 'special circumstances' justifying the remission of monetary compensatory amounts under Article 13 of Council Regulation No 1430/79 · That does not, however, mean that the which was thus wrongly refused by the Court could, in an action for challenging Commission in the contested decision? the validity of a decision based on Article 13 of Regulation No 1430/79, order the * Translated from the French. repayment of monetary compensatory 1 — Council Regulation (EEC) No 1430/79 of 2 July 1979 on amounts which had been collected the repayment or remission of import or export duties (Official Journal 1979, L 175, p. 1). unlawfully. As will be seen in a moment,

In this case Community law, that is to say I must therefore conclude that an individual Article 2 of Regulation No 1430/79, who challenges a decision based on Article expressly provides that where there is a 13 of Regulation No 1430/79 may not put dispute with regard to the very existence of forward submissions designed to show that a customs debt an application for repayment there was no customs debt. The submissions or remission of duties is to be submitted to in question are therefore inadmissible. the appropriate customs office within three years of the date on which those duties were entered in the accounts by the authority responsible for their collection. I shall nevertheless examine the question of the applicability of the monetary compensatory amounts in this case, should the Court not agree with my conclusion. 3 The new version of Article 13 unambig­ uously confirms that the provision relates only to 'situations other than those referred to in Sections A to D' of Regulation No I — Were monetary compensatory amounts 1430/79. In fact Section A includes Article 2 applicable? which applies, as we have seen, when there is no customs debt.

2 — Sec in particular its judgment of 21 May 1976 in Case In order to place that question in its context 26/74 Roquette Frères v Commission [1976] ECR 677, para- I would like to remind the Court very graphs 9 and 11 of the decision, and its judgment of 27 March 1980 in Joined Cases 66, 127 and 128/79 Amminis- briefly of the background to and the course trazione delle Finanze v Salumi [1980] ECR 1237, of the transactions effected by the two paragraph 17 of the decision. 3 — Council Regulation (EEC) No 1672/82 of 24 June 1982 Italian undertakings 'under authorizations (Official Journal 1982, L 186, p. 1). granted under the inward processing

(ii) durum wheat is exported to Member The dispute between the parties turns on the States. question of which of the following two provisions should govern the exports as It was precisely in order to facilitate trans­ regards the applicability of monetary actions falling within the first category that compensatory amounts: inward processing arrangements were estab­ lished. Those arrangements are defined in Article 2 (1) of Directive 69/73 as 'the customs arrangements whereby imported Article 20 of Commission Regulation (EEC) goods which do not satisy the conditions No 1371/81 of 19 May 1981 laying down contained in Articles 9 and 10 of the Treaty detailed rules for the administrative may be processed without giving rise to application of monetary compensatory liability for payment of customs duties, of amounts, 5 which authorizes the Member charges having equivalent effect or of agri­ States to exempt from the application of cultural levies' (including monetary monetary compensatory amounts 'products compensatory amounts 7)'where such goods declared at the same time both for release at are intended for export outside the customs import and for re-export', the article territory of the Community wholly or partly favoured by the applicants; in the form of compensating products

In this case compensating products were or Article 5 of Commission Directive exported before the imports were effected 75/349/EEC of 26 May 1975 on detailed (Article 25 of Directive 69/73). They should rules concerning equivalent compensation therefore have been 'products derived from and prior exportation under inward 6 — Official Journal 1975, L 156, p. 25. 4 — Council Directive 69/73/EEC of 4 March 1969 on the 7 — Monetary compensatory amounts are covered by the terms harmonization of provisions laid down by law, regulation 'import duties' and 'export duties' as defined in a general or administrative action in respect of inward processing manner in Community legislation on customs matters since (Official Journal, English Special Edition 1969 (I), p. 75). they were introduced in 1971 (see, for example, Article 1 5 — Official Journal 1981, L 38, p. 1. (2) (a) and (b) of Regulation No 1430/79).

processing of goods of the same kind and arrangements 'shall be finally discharged quality and having the same technical when the customs authority has accepted characteristics as those of the imported the declaration on the non-Community goods' (Article 24 of the directive). goods' (second paragraph of Article 18 (1)) which must be done within the period laid down (Article 14 (3)). That is the moment at which the inward processing operation is The former, that is to say the compensation completely settled. goods, since they are not themselves subject to inward processing arrangements, were in free circulation in Italy in accordance with The second operation was then grafted onto Article 2 (1) of Directive 75/349. that state of affairs: the 'import goods' which had, so to speak, taken the place of the 'compensation goods' (Italian durum wheat) used in advance to manufacture the The latter, that is to say the import goods, 'compensating products' previously exported for which the compensating products were to non-member countries, were re-exported substituted in advance, should therefore, to other Member States. under Article 5 (1) of Directive 75/349, be

75/349). To ensure that the time-limit is applicants had proceeded not by means of observed it is even provided that the holder operations involving equivalent compen of the authorization must lodge a security in sation and prior exportation but by means order to guarantee payment of the export of operations involving compensation duty payable in respect of the compensating known as identical compensation where the products if they are not exported under very goods which have been imported are inward processing arrangements (Article re-exported outside the customs territory of 10). the Community as compensating products: in such a case the applicants may export to France and Belgium only Italian durum

OPINION OF MR MISCHO — JOINED CASES 244 AND 245/85

No importation therefore took place, at least nominally; consequently and inevitably there could be Since the Community is based upon a no simultaneous re-exportation. customs union the inward processing system does not apply, by definition, to trade between Member States. In short, the importation which took place was effected by final discharge of the prior Therefore, exemption from duties, including exportation under inward processing monetary compensatory amounts, applies arrangements and could therefore not figure only to imports from non-member countries in any other operation on pain of giving the and exports to non-member countries. persons concerned an unjustified advantage. If the applicants wished to finally discharge their inward processing operations, which As those principles derive from the very they could do only by importing durum nature of the inward processing system wheat and at the same time putting it into Article 20 of Regulation No 1371/81 can free circulation, they could not benefit from do nothing to change them.

It therefore presupposes that the monetary compensatory amounts are applicable to In other words, either the importation of each of the two proposed operations and durum wheat complements the exportation that the grant and levy will cancel each of durum-wheat meal to non-member other out financially. countries, or it is compensated by its re-exportation to other Member States, but not both at the same time; otherwise, as the In this case the imports of durum wheat Commission correctly emphasizes in the effected under inward processing sixth recital in the preamble to the decision arrangements were, by definition, carried at issue, 'the undertakings would benefit out under exemption from duties including from exemption from those amounts' monetary compensatory amounts. There can (monetary compensatory amounts) 'on exportation both as regards the durum 9 — Ursula Baumann, 'Le régime douanier de perfectionnement wheat which was imported and forwarded' actif', in Revue du Marché Commun, No 280, 1984, p. 406

CEREALMANGIMI AND ITALGRANI v COMMISSION

10 1371/81 cannot be accepted. As the Commission pointed out, Article 2 of As the Commission showed in a convincing Council Regulation (EEC) No 1697/79 of manner in its rejoinder, it is not possible to 24 July 1979 on the post-clearance recovery conclude from that amendment, or from the of import duties or export duties 11expressly views of certain members of the Committee obliges the authorities of the Member States on Customs Procedures for Inward to recover the sums which have not been Processing, that Article 20 was, either required on importation or exportation as a before or after its amendment, applicable to result of an error. operations of the kind at issue in the cases before the Court. Article 5 (2) of the regulation provides, however, as follows: 'The competent auth From all the foregoing considerations I orities may refrain from taking action for conclude that the monetary compensatory the post-clearance recovery of import duties amounts were in fact payable and that or export duties which were not collected as undertakings as specialized as the applicants a result of an error made by the competent could hardly have been unaware of that. It authorities themselves which could not remains to ascertain whether the reasonably have been detected by the person Commission, acting on the basis of Article liable, the latter having for his part acted in 13 of Regulation No 1430/79, was right in good faith .

amounts. on a 'subjective Community right on the part of the undertakings to exemption from payment of monetary compensatory It was open to the applicants to challenge amounts'. that decision within a period of three months from the date on which they were informed of the decision. They did not However, it does not seem to me that they exercise that right. have likewise abandoned their submission that the decision to apply Article 20 of Regulation No 1371/81, previously adopted It may be concluded from the foregoing that the post-clearance recovery of duties 10 — Commission Regulation (EEC) No 2883/83 of 14October which were not collected as a result of an 1983 amending for the second lime Regulation (EEC) No error made by the competent authorities is 1371/81 laying down detailed rules for the administrative application of monetary compensatory amounts (Official Journal 1983, L 283, p. 14). 11 — Official Journal 1979, L 197, p. 1.

exhaustively regulated by Article 5 (2) of The Court itself has given judgment on Regulation No 1697/79 and that in the three occasions on applications to have absence of additional factors such a failure to Commission decisions adopted on the basis collect the duties cannot fall within the of Article 13 of Regulation No 1430/79 12 scope of Article 13 of Regulation No declared void. 1430/79 which, as the Court has stated, is 'designed to cover situations other than those which have most often arisen in

In the first case (Decision of 27 July 1981, No REM 7/81) the Commission charged the On the basis of those facts the applicants administration with failing to draw the maintained that the view taken by the attention of those concerned to an adminis customs officers at Naples 'corresponded to trative step to be taken in order that the the then prevailing policy of the customs operation which they proposed to effect authorities of the Member States' (see their could be executed under exemption from reply, at p. 7). duties. In the other two cases (Decision of 25 October 1982, No REM 12/82 and Decision of 14 September 1984, No REM It is clear that such a conclusion is quite 23/84) the Commission regarded as a exaggerated. The prevailing policy was 'special circumstance' the fact that wrong without any doubt the reverse. information given by a customs office led a private individual not to carry out a formality which he could easily have carried Moreover, in order to assess the weight to out if he had been correctly informed. be attached to that argument it seems to me 12 — Judgment of 15 December 1983 in Case 283/82, Papier- necessary to place Article 13 in its context fabrik Schoellershammer H. A. Scboellerv Commission [1983] and to refer to the manner in which that ECR 4219; judgment of 13 November 1984 in Joined Cases 98 and 230/83 Van Cend en Loos v Commission provision has been applied to the present [1984] ECR 3763; and judgment of 15 May 1986 in Case time. 160/84 Oryzomyliv Commission [1986] ECR 1633.

In all those cases the administration's error It would in any case have been difficult for had adverse consequences for the persons them to state that. They would then in fact concerned in that they were unable to have admitted that they were seeking to exercise the rights comprising economic or circumvent the rules of Community law commercial benefits which they could which provide that with regard to Italy lawfully have claimed had the information monetary compensatory amounts must be received by them been correct. Conse­ paid on the exportation of agricultural quently the treatment they received which products. was less favourable than they were due in strict law was based on the administration's error. However, in the end on grounds of equity they did receive the more favourable I would also like to submit my opinion, treatment to which they would have been equally briefly, with regard to the entitled had they not been misled with submission that the applicants were regard to the action they should take. subjected to alleged discrimination in relation to other undertakings, especially French and British undertakings, which received authorization from their respective national authorities for similar operations In this case, by contrast, the applicants were without being required to pay monetary not deprived of treatment which was more compensatory amounts. In that respect I favourable than they could have claimed by take the view that there can be discrimi­ virtue of the fact that they failed to satisfy nation in such a situation only if the same certain conditions or complete certain provision is interpreted in different ways by formalities as a consequence of receiving one and the same authority and not where incorrect information from the Italian the different interpretations are given by customs authorities. The applicants merely two different authorities as in this case. revealed their intention of exporting to other Member States the durum wheat imported from non-member countries, and The erroneous interpretation given by it was when applying the Community rules certain British and French authorities cannot to those operations that the Italian auth­ be relied upon against the Commission, orities made a mistake with regard to the especially since the Commission, as soon as assessment of the facts and the interpre­ it was aware of the operations authorized tation of the relevant provisions. Once they by those Member States, requested that the discovered their error they immediately corresponding own resources be made took steps to correct it and applied to the available and, having failed to obtain satis­ operations the only customs treatment faction, instituted proceedings against them which was lawfully possible having regard under Article 169 of the EEC Treaty. to their nature.

Finally, during the hearing the applicants In short, it is my opinion that when put forward a new argument in support of considering a request for the application of their application. They pointed out that in Article 13 of Regulation No 1430/79 the the case of exports to a country which also following questions are the most important applies negative monetary compensatory to be considered. amounts it was the normal practice for the importer to pay to the exporter the amount What would have happened if the circum­ of the monetary compensatory amounts stances relied upon had not occurred? received by him. Would the applicant have received treatment which was more favourable than that which he in fact received or which it In view of the time that had passed they appeared he would receive? In the light of contended that they could no longer benefit all the circumstances of the case would it be from such payments. The damage they inequitable to deprive him of that more suffered thereby must be regarded as a favourable treatment? special circumstance within the meaning of Article 13. Since in the cases now before the Court the reply to those questions can only be in the In respect of that argument it is necessary to negative and since, moreover, the applicants make three observations. have failed to show that they would have abstained from making the exports in First, it is not acceptable for the parties to question if the customs authorities had proceedings to put forward for the first time indicated to them that monetary at the hearing a completely new argument compensatory amounts were due, I come to in relation to which the other party has had the conclusion that the cases present no no opportunity to prepare a reply. The special circumstances within the meaning of argument therefore appears to me to be Article 13 of Regulation No 1430/79. inadmissible. It is therefore not necessary to consider Secondly, I take the view that when the whether the applicants were guilty of Court is called upon to give a ruling on the negligence or deception which would, applicability of a provision of Community according to Article 13, exclude any law it does not have to take into remission of duties. consideration the arrangements which may exist between importers and exporters in I must, however, point out shortcomings in different Member States. the statement of reasons on which the Commission's decision is based. Finally, the circumstance relied upon, namely the grant of monetary compensatory The Commission explains primarily why amounts by the country of importation, was monetary compensatory amounts should be only partially realized in this case. applied to the operations in question and it Throughout the whole of the period during states that they were not collected as a which the exports in question were effected, result of an error. It does not, however, that is to say between 5 October 1981 and 8 address itself clearly to the question why June 1982, negative monetary compensatory that error cannot constitute a special amounts were applicable in France for only circumstance.

It merely states in the fifth recital in the the import or export duties which would preamble to the decision that the two normally be payable? As such and by defi­ undertakings specialize in international nition, it provides the person benefiting trade in cereals and products derived from from its application with an 'advantage' to the processing of cereals, in particular under which he is not, in principle, entitled. the inward processing system, and could not therefore be unaware of the relevant rules. From that point of view the Commission's It seems to follow from the Commission's argument that 'not to apply the monetary written observations (see its defence, at p. 9) compensatory amounts to the applicant that it considered that that amounted to would amount to granting him a benefit for 'negligence' on the part of the applicants, which there was no objective justification' which prevents the grant of remission on (see its rejoinder, at p. 8; see also the final equitable grounds. sentence of the fifth recital in the preamble to its decision of 22 March 1985) may serve In my view the fact that the applicants could to show that the monetary compensatory not have been unaware of the law applicable amounts are in principle payable, but not to is — in this case — more in the nature of exclude a priori the existence of 'special corroboration of the contention that there circumstances' within the meaning of Article were no special circumstances in these cases. 13 of Regulation No 1430/79. It would In any event the Commission should have require a very broad interpretation of the given clearer explanations on that matter in fifth recital, reading, so to speak, between its statement of reasons and have first the lines, to find therein evidence of the considered, as it itself emphasizes in its absence of equitable grounds. rejoinder (at p. 8), whether or not there were reasons for granting equitable relief, However, whilst I realize that the Court that is to say, special circumstances, in these may consider of its own motion whether the cases. obligation to state the reasons on which the 13 decision is based was satisfied, I propose I find it difficult to accept that the reasons that the Commission's decision should not for applying monetary compensatory be declared void for failure to provide a amounts to the transactions at issue can sufficient statement of reasons because I am exclude the operation of any equitable convinced that, if it based its decisions on considerations a priori. Surely the very fuller reasons, the Commission could still purpose of the first paragraph of Article 13 only arrive at the same decision in of Regulation No 1430/79 is to authorize, substance, that is to say it would reject the in circumstances for which no provision has application for the remission of monetary been made, the repayment or remission of compensatory amounts.