C-161/88

OPINION OF MR DARMON — CASE 161/88

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 16 May 1989 *

Mr President, presented by the Commission was never Members of the Court, adopted. By an order of 9 March 1983, the German Finance Minister corrected the rate of duty applicable from 1 January 1983 by fixing it again at 13 %. The German auth­ orities issued three final notices on 28 and 1. The Finanzgericht (Finance Court) 29 March and 13 June 1983 requiring the München has referred to the Court a p ost-cle arance payment of customs duties question which seeks, in substance, to representing the amount unpaid. determine the effects that an error made by the national authorities regarding the application of Community law has on traders acting in good faith.

cooperation. ' The proposal for a regulation 3 — Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure *' Original language: French. involving the obligation to pay such duties (OJ L 197, 1 — OJ L 130, 27.5.1980, p. 1. 3.8.1979, p. 1).

BINDER v HAUPTZOLLAMT BAD REICHENHALL

5. By Decision 8/85 of 5 November 1985 9. But, as I stated on that occasion, I was of (hereinafter referred to as 'the decision'), the opinion that the scope of that judgment the Commission declared that post- should be determined with regard to the clearance recovery should be effected. previous decisions in which the Court acknowledged the existence of the principles of legal certainty and the protection of legitimate expectations in the Community 7 legal order. By definition, those principles 6. The Finanzgericht München, to which are aimed at protecting situations which are Binder appealed against the rejection of its unlawful from a strictly legal point of view, objection by the customs authorities, has in order to maintain a balance between asked the Court to rule on the validity of equity and the rule of law. To refuse to that decision. apply those principles to an error of the authorities would be to deprive them to a large extent of their effects.

7. The parties in the main proceedings have not submitted observations to the Court. It is, however, clear from the order for 10. The Commission contends that to reference that the validity of the confirm the existence of legitimate expec­ Commission's decision is contested on the tations in the Gebrauchszolltarif, which has a ground both of a breach of the principle of purely declaratory status, would mean the protection of legitimate expectations and calling into question the primacy of of a failure to observe Article 5(2) of Regu­ Community law, since only regulations lation No 1697/79. The two points will be published in the Official Journal of the dealt with in turn. European Communities have legal force.

some effects such as those pointed out by 14. In fact the Commission appears, Mr Reischl, it nevertheless does not have implicitly, to be asking the Court to rule legal force in the strict sense of the term. that the principle of the protection of The Gebrauchszolltarif, as I have stated, has legitimate expectations may be relied on purely declaratory status. Therefore, only with regard to a text emanating from a contrary to what the Commission claims, Community institution and not with regard the mere fact that information in that to a text issued by national authorities, even manual is taken into consideration when if it relates to a piece of Community legis­ determining whether or not a trader may lation. In other words, the Commission have legitimate expectation does not have seems to consider it possible for its own the effect of conferring legal force on it, or errors to be taken into consideration but not on any published proposal, or of thereby for the same approach to be adopted with contravening the principle of the primacy of regard to errors made by national auth­ Community law. orities.

15. It is true that in Salerno v Commission and Council the Court declared that 12. The Commission also contends that an acceptance of Binder's claims would lead to an undermining of the unity and uniform application of Community law, the need for 'a resolution of the Parliament is not which was stressed by the Court in its binding and cannot give rise to the judgments in Račke v Hauptzollamt Mainz 10 legitimate expectation that the institutions and Decker v Hauptzollamt Landau, ' ' by will comply with it'. ' 2

BINDER v HAUPTZOLLAMT BAD REICHENHALL

16. I am not, of course, suggesting that the 'even if Article 13 of Regulation No Court should declare that, by virtue of the 1430/79 can be interpreted as being principle of protection of legitimate expec­ identical in meaning to the concept of force tations, no errors made by national auth­ majeure, recognition of a case of force orities in the application of the Common majeure none the less presupposes that the Customs Tariff can ever give rise to post- external cause relied upon has irresistible clearance recovery. I am merely proposing and inevitable consequences to the point of that it should be declared that such a making it objectively impossible for the principle is applicable in such circumstances. persons concerned to fulfil their obligations. It must then be determined whether, in the In this case, since the applicants are circumstances of the case, Binder is entitled competent professionals, the fact of having to challenge the Commission's decision in been furnished with invalid certificates of reliance on the principle of the protection of origin cannot be regarded as an unfore­ legitimate expectations. seeable and inevitable circumstance which occurred in spite of the exercise of all due care. A customs agent, by the very nature of his functions, renders himself liable both for the payment of import duty and for the validity of the documents which he presents 16 to the customs authorities'.

17. Let us now consider Anicie 5 of Regu­ lation No 1697/79. That article, it will be remembered, refers to 'an error ... which could not reasonably have been detected by the person liable'.

finally — the case covered by Article (ii) again, no action may be taken when 13 — 'in situations resulting from special the amount charged was calculated on circumstances in which no negligence or the basis of provisions of a general deception may be attributed to the person nature subsequently invalidated by a concerned'. This in fact adds a further court decision; this provision, like the ground for repayment or remission of the first, appears in paragraph (1) of the customs debt and the article, quite article; reasonably, excludes repayment or remission in the event of any deception attributable to the person concerned, that is to say bad faith, or negligence, meaning carelessness or (iii) the competent authorities may refrain recklessness. It would appear that the from taking action for post-clearance judgment in Van Gend & Loos, which did recovery in the event of an error which not rule explicitly on whether those could not reasonably have been provisions are identical in meaning to the detected by the person liable: this is concept oí force majeure, merely applied that contained in Article 5(2), which is in negligence proviso, and observed that a issue in the present case. customs agent who, by the very nature of his functions, renders himself liable for the validity of the documents which he presents to the customs authorities should have 21. Commission Regulation (EEC) No checked that the certificates of origin with 1573/80 of 20 June 1980, which concerns which he had been furnished were valid. the implementation of Article 5(2), cited above, lays down the circumstances in which the competent authority of the Member State is to request the Commission to take a decision. The Court has already had occasion to rule that that provision 20. The scheme of Regulation No 1697/79 is quite different. That regulation does not involve the repayment or remission of customs duties but the very opposite — their 'must be interpreted as meaning that if all post-clearance recovery. It does not specify those requirements are fulfilled the person the causes of the failure to charge duty. liable is entitled to the waiver of the Article 1 merely refers in general to 'import 7 recovery of the duty in question'. ' duties or export duties ... for which, for whatever reason, payment has not been required of the person liable for payment'. And Article 5 lays down three limits to 22. Before considering the application of recovery: Article 5(2) in the present case, I consider it . necessary to draw the Court's attention to the provisions of paragraph (1) of that article. It is true that the question to be determined relates to the validity of the Commission's decision solely with regard to (i) no action whatever may be taken for paragraph (2), but it must nevertheless be recovery when the amount charged was asked whether the Commission must not lower than the amount legally due and include among the factors to be taken into was calculated on the basis of infor­ consideration when adopting its decision an mation given by the competent auth­ orities themselves which is binding on 17 — Case 314/85 Foto-Froit v Hauptzo/lamt Ubeck-Ost [19871 them; ECR 4199, paragraph 22.

initial verification that the legal require their opinion on certain aspects of the rules ments for post-clearance recovery are governing the goods which he wishes to fulfilled, and therefore the verification that declare. But legal writers took the view that the provisions of Article 5(1) are not advice given in such circumstances by the applicable in the relevant case. If the error customs authorities had no legal significance comprises all the features set out in and was only a point of information not ls paragraph (1) — that is to say, if it binding on the authorities. By referring to emanates from the competent authorities 'information given by the competent auth and appears in information binding upon orities themselves which is binding on them', them — there is an absolute bar to post- was Article 5(1) intended to exclude the clearance recovery. And it would be difficult advice given by customs authorities which to understand how, in such an event, the legal writers have hitherto regarded as not Commission could be entitled to determine binding on the administration, or was it, on whether or not there was cause to recover the contrary, intended to mean that such the customs duty in the light of the advice was henceforth to be binding on requirements set out in paragraph (2). customs authorities, thus making any post- Ordinary logic requires that, before clearance recovery impossible? considering whether action should be taken for post-clearance recovery, the Commis sion should verify whether the legal requirements for that recovery are fulfilled.

If the 23. The Court will be called upon to Community legislature had wished to provide an explicit answer to such diffi include in the concept of 'information' culties, for in Case 80/89, which is very provisions of a general nature such as similar to the present case, the Finanz administrative instructions or regulatory gericht Hamburg has referred another texts, it would also have used in the first question to the Court relating to the indent the expression 'provisions of a possible application of Article 5(1). general nature', which appears in the second indent. Article 5(1), which is merely an application of the principle of the protection of legitimate expectations, is therefore to be

18 — Claude J. Berr & Henri Tremeau, 'Le droit douanier', 25. It is well known that a person liable for Régime des opérations de commerce international en France et customs duty may ask the authorities for dans la CEE, 2nd edilion, No 252, p. 177.

OPINION OF MR DARMON —CASE 161/88

law. Legitimate expectations may not, for advice from persons making customs however, in the absence of any finding of 20 declarations. invalidity, be founded on a text of general scope which is contrary to provisions having force of law. To decide otherwise would be to overturn the hierarchy of legal rules. This is, in fact, the solution adopted in German 28. Be that as it may, the Gebrauchszolltarif law, since in a judgment of the Bundesfi­ cannot, as I have stated, be regarded as 19 nanzhof (Federal Finance Court) it has information given by the competent been held that a taxpayer may not plead authority because of its general nature and that he has relied on provisions of a decree because of the fact that it does not refer to of the Federal Finance Minister which was the individual situation of a particular contrary to provisions of a legislative nature. trader. The first indent of Article 5(1) is In that court's view, the contrary solution not, therefore, the basis on which the Court would make it possible to revoke legislative must assess the effect that the Gebrauchs- provisions by means of a general adminis­ zolltarif and the error contained therein trative decree. Legitimate expectations can therefore be protected only in the context of have on the outcome of this case. a specific legal relationship between the competent administrative authority and the person liable.

BINDER v HAUPTZOI.LAMT BAD REICHENHALL

31. The Commission, on the other hand, 35. In that regard, I consider that, as the maintains that the Gebrauchszolltarif is Court hinted in its judgment in Van purely declaratory in character, as the Gend & Loos in connection with Regu­ commentary on the manual itself indicates 21 lation No 1430/79, the nature of the and that any trader who consults only the business carried on by the person liable is manual must accept the risk that it may one of the most important criteria to be be at odds with the texts published in borne in mind when determining whether the Official Journal of the European the error could reasonably have been Communities. detected. It is up to the trader habitually importing a given type of product, whether as a customs agent or as an import-export company, to acquaint himself with the rates of duty in force in the relevant field, either through regular reading of the Official Journal of the European Communities or from the information distributed by the 32. I have already stated my opinion on the trade and professional organization in his question whether the principle of the sector. He may, of course, risk not taking protection of legitimate expectations may be such precautions but he must then bear all applied here without in any way calling into the consequences. The situation would be question the primacy of Community law. quite different, on the other hand, in the case of an undertaking which occasionally imports such goods but whose usual commercial activity is not arranged for importing them.