C-64/89

OPINION O F MR MISCHO — CASE C-64/89

O P I N I O N OF MR ADVOCATE GENERAL MISCHO delivered on 8 M a r c h 1 9 9 0 *

Mr President, provisions for the implementation of Article Members of the Court, 5(2) of Council Regulation (EEC) No 1697/79 (Official Journal 1980, L 161, p. 1) contains inter alia the following two provisions : 1. Before the competent German courts, Deutsche Fernsprecher GmbH is chal- lenging the validity of the post-clearance 'Article 2 recovery of import duties amounting to D M 27 114.70 on certain items of telephone equipment which were subject to outward processing. Where the competent authority of the Member State in which the error was committed which resulted in insufficient duty being collected is able to ascertain by its own means that all the conditions referred 2. Article 5(2) of Council Regulation (EEC) to in Article 5(2) of the basic regulation are N o 1697/79 of 24 July 1979 on the post- fulfilled, it shall decide not to take clearance recovery of import duties or action for the post-clearance collection of export duties which have not been required the uncollected duties, provided that the of the person liable for payment on goods amount of the duties involved is less than entered for a customs procedure involving ECU 2 000. ! the obligation to pay such duties (Official Journal 1979, L 197, p. 1) provides that

Article 4

'the competent authorities may refrain from taking action for the post-clearance Where the competent authority of the recovery of import duties or export duties Member State in which the error was which were not collected as a result of an committed is not able to ascertain by its error made by the competent authorities own means whether all the conditions set themselves which could not reasonably have out in Article 5(2) of the basic regulation been detected by the person- liable, the latter are fulfilled, or where the amount of the having for his part acted in good faith and duties involved is equal to or greater than observed all the provisions laid down by the ECU 2 000, it shall request the Commission rules in force as far as his customs declar- to take a decision on the case, submitting to ations is concerned.' it all the necessary background information.'

5. The first question is worded as follows : •Whereas in cases where the competent authorities of the Member States are unable to ascertain by their own means that all 'Is the relevant Community law, in the conditions stipulated in Article 5(2) of particular Article 4 of Commission Regu- Regulation (EEC) N o 1697/79 are fulfilled, lation (EEC) N o 1573/80 of 20 June 1980, and in any event where the duties which to be interpreted as meaning that, in the have not been collected total ECU 2 000 or event of post-clearance recovery of customs more, the action to be taken by the said duty of an amount equal to or greater than authorities should be subject to a decision ECU 2 000, it is not necessary to request by the Commission after consultation with a the Commission to take a decision on the group of experts composed of represen- waiver of post-clearance recovery where the tatives of all Member States.' competent authority of the Member State in which the error resulting in the non-collection of duty was committed takes the view that the conditions set out in Article 5(2) of Council Regulation (EEC) 9. Certainly, the German language version N o 1697/79 of 24 July 1979 are not of this recital is different from the other fulfilled?' language versions, inasmuch as the second part thereof is not introduced by words such as 'und in allen Fällen, wenn der 6. Owing to the terms in which the B e t r a g . . . 2 000 E C U oder mehr beträgt', provisions in question are couched, my which would better accord with the initial reaction was to propose that a expressions used in the other versions, negative reply should be given to that namely 'og under alle omstændigheder hvis', question and that the Court should rule 'et, dans tous les cas, lorsque', 'e in tutti casi that, even in the situation referred to, the qualora', 'en, in elk geval, wanneer'. 2 competent authority of a Member State must request the Commission to take a decision. 10. But is not the contrast, to be found in 7. In fact, Article 4 very clearly conveys the the German language version as well, impression that it is contrasting two situ- between the first part of that recital and the ations: on the one hand, a situation in second, and the use of the expression 'the which the competent authority is not able to action to be taken by the said authorities satisfy itself that all the conditions laid should be subject to a decision by the down in Article 5(2) of the basic regulation Commission' indicative of the fact that the are fulfilled, and, on the other, a situation obligation to request the Commission to in which the amount in question is greater take a decision arises whenever the amount than ECU 2 000, whatever view, moreover, the authority may have formed with regard 2 I hive deliberately contrasted only the official Community language versions at the time when the regulation was to the conditions laid down in Article 5(2). adopted.

the interpretation contended for by it. The Commission adds that:

14. However, the arguments which may be adduced in support of the Commission's 'Thus, the third recital of that regulation point of view, which were also supported, at seems rather to be opposed to the practice any rate at the hearing, by the Spanish generally followed.' Government, do not however lack weight either.

12. As against that practice, one may also point to the summary of the scope of Regu- lation No 1573/80 contained in the first recital in the preamble to Regulation (EEC) 15. First of all, it follows from Article 2(1) N o 2380/89 3 of 2 August 1989, which of the basic regulation (Council Regulation replaced Regulation No 1573/80. There it is No 1697/79, mentioned above) that: stated as follows:

3 — Commission Regulation (EEC) N o 2380/89 of 2 August 1989 laying down provisions for the implementation of Article 5(2) of Council Regulation (EEC) N o 1697/79 on the post-clearance recovery of import duties or export 'Where the competent authorities find that duties which have not been required of the person liable all or part of the amount of import duties or for payment on goods entered for a customs procedure involving the obligation to pay such duties (OI L 225, export duties legally due on goods entered 3.8.1989, p. 30). for a customs procedure involving the obli-

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DEUTSCHE FERNSPRECHER

16. In its judgment of 21 September 1989 in 20. That is certainly the system under Case 68/88 Commission v Greece [1989] Regulation No 2380/89, which replaced ECR 2965, the Court has again pointed out Regulation No 1573/80. Article 2(b) thereof that the post-clearance recovery of duties is essentially identical to the former Article constitutes an obligation imposed on the 2, since it permits the competent authority Member States. to refrain from requesting the Commission to take a decision when it considers that all the conditions laid down in Article 5(2) of the basic regulation are fulfilled, provided 17. Commission Regulation No 1573/80 is that the amount in question is less than solely intended to lay down the conditions ECU 2 000. The new Article 4 is worded as for the implementation of Article 5(2) of the follows : basic regulation, that is to say the provision permitting waiver of recovery in certain cases. (In the first two recitals in the preamble to the regulation the words 'Where, other than in the cases referred to 'refrain from taking action for the in Article 2, the competent authority of the . . . recovery' may be found in three places.) Member State in which the error was committed either considers that the conditions of Article 5(2) of the basic regulation are fulfilled, or is in doubt as to the precise 18. It may therefore be argued that Article scope of the criteria of that provision 4 of the Commission regulation and the with regard to a particular case, that relevant recital in no way refer to the authority shall submit the case to the situation in which the national authorities Commission are persuaded that the conditions laid down in Article 5(2) are not fulfilled, and that in such cases the question of requesting the 21. One might certainly be tempted to Commission to take a decision cannot even argue that when a new text, worded arise, whatever the amount in question. differently, replaces an earlier text which governs exactly the same subject-matter, an a contrario reasoning must be adopted to arrive at the conclusion that the text was 19. Viewed in that light, the phrase 'in any amended in order to express a different event' in the third recital in the preamble idea. to Regulation No 1573/80 (except in the German version) is not intended, it may be argued, to extend Article 4 to the case where the national authority considers that 22. In the present case, it seems to me, it must effect post-clearance recovery but however, that it is possible to accept the merely indicates that when there are argument that the new wording of Article 4 weighty arguments for not proceeding to is specifically intended to remove the ambi- recover an amount of ECU 2 000 or more, guities of the former provision.

23. The Commission tells us, in fact, that 26. On the other hand, discussion within the practice of the German customs auth- the Committee on Duty-Free Arrangements orities not to request the Commission to of cases about which the Member States are take a decision when they are persuaded doubtful and of those in which the waiver that the conditions laid down in Article 5(2) of recovery of customs duties equal to or are not fulfilled is in conformity with the greater than ECU 2 000 is in their opinion practice of the other Member States and the justified allows the progressive development Commission's position. of criteria enabling the Member States to identify cases in which they may themselves legitimately decide that the conditions laid down in Article 5(2) are not fulfilled.

25. The Commission submits, first of all, viduals should be tolerated. that the uniform application of Community law is adequately guaranteed, even if the national authorities are not required to request it to take a decision whenever the 28. In my view, the essential argument for amount at stake is equal to or greater than an affirmative reply to the first question is E C U 2 000. In addition to the arguments the following: when an institution has put forward by the Commission, which are drawn up and adopted rules after consul- summarized in the Report for the Hearing, tation with the representatives of the I would point out that, under Article 3 of Member States and interprets those rules in Regulation N o 1573/80, the Member States a certain way (which does not moreover must send to the Commission a list of the result in the grant to it of the maximum cases, giving a short summary of each case, possible powers), and when that interpre- in which they considered themselves able by tation is corroborated by the practice of the their own means to ascertain that it was not Member States, which, in their capacity as necessary to effect recovery in respect of members of the Council, are the authors of amounts less than E C U 2 000 (Article 2 of the basic regulation, and when furthermore that regulation). Even if the regulation does that interpretation is enshrined in a new not expressly so provide, the Commission regulation, there is no reason to place could certainly make known to the Member reliance on the ambiguities of the former States, for example within the Committee provision in order to apply an interpretation on Duty-Free Arrangements, its obser- which runs counter to that given to it by vations on cases in which, in its opinion, the institution which is the author of that non-recovery was not justified. provision.

30. The second question is formulated as follows: 34. That shows that good faith and non-detectability of the customs error cannot always be regarded as constituting 'In the event that Question 1 is answered in one and the same condition, contrary to the affirmative, is Article 5(2) of Regulation what the Court held in its judgment of 22 (EEC) No 1697/79 to be interpreted as October 1987 in Case 314/85 Foto-Frost v meaning that whether the error could not Hauptzollamt Lübeck-Ost [1987] ECR 4225, reasonably have been detected by the person paragraph 25). liable is to be determined on the basis of an objective test and that it is therefore to be assumed that the error could have been detected where the party concerned could have ascertained it in the light of the 35. As to the question whether one must relevant (published) provisions, which are apply an objective or subjective test in order neither unclear nor incomplete, or is the to determine whether the person liable error to be treated as undetectable even could or could not detect the error of where the customs authority, when twice the administration, I would point out providing (legally non-binding) information, straight away that I share the Commission's conveyed to the party concerned its opinion that it is necessary to take into erroneous view on which the customs consideration both the objective aspects and treatment was based?' the subjective aspects of each individual case. If Article 5(2) could come into play only where the (published) provisions are ambiguous or incomplete, its scope of 31. It should be noted straight away that application would be too narrow for it to be the Bundesfinanzhof does not ask the Court able to operate as an equitable provision in in what circumstances the person liable must the manner intended. be deemed to be acting in good faith but only inquires about the definition of an 'error not detectable by the person liable'. 36. Secondly, as the Hessische Finanz- gericht, before which the case came at first 32. In fact, the Bundesfinanzhof tells us instance, stated, it is of the very essence of expressly (at the beginning of point II of its an error that it is detectable, so that, in the order for reference) that it is uncontested final analysis, with the requisite knowledge that the plaintiff acted in good faith and and the necessary care, any error committed observed the rules relating to customs by an authority can be detected by those declarations. concerned.

'it would be practically impossible to effect 43. It does not seem to me possible to lay post-clearance recovery since the error must down any such general rule which would, always have been committed by a competent moreover, amount to re-introducing in this official who has not examined in all its way an 'objective' criterion likely to be aspects a given factual or legal situation' applied more or less automatically. I (p. 9 of the Commission's observations). consider that it is necessary to take into consideration each time the precise nature of the error committed by verifying whether the rules involved were complex, such as 41. I consider, however, that in certain those governing outward processing or, as circumstances the repetition of an error in the Binder case, 5 an error which is quite committed even by higher ranking customs authorities, even if in a form not binding on 4 — In the judgment of 23 May 1989 (ECR 1359) the case was them, justifies the conclusion that the error decided on the basis of one of the other criteria contained in Article 5(2) of the basic regulation. was not detectable by the importer. Thus, at 5 — Judgment of 12 July 1989 in Case 161/88 Binder [1989] paragraph 50 of my Opinion of 2 March ECR 2415.

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DEUTSCHE FERNSPRECHER

46. The finely balanced analysis carried out by the Commission in its observations could provide useful guidelines in this regard. The Commission acknowledges that this is a ' . . . outward processing arrangements means borderline case and that the customs arrangements whereby goods of whatever kind or origin may be temporarily exported outside the customs territory of the Community with a view to their being reimported in the form of compensating 'The relevant provisions in this case are products, as defined in Article 3, wholly or provisions which in general do not make for partly free of import duties, after they have undergone one or more processing oper- 6 — Sec, in this regard, the Opinion delivered on 6 May 1989 ations, as defined in Article 3, outside the by Mr Advocate General Dartnon in the Binder case, paragraph 35 of the Opinion (ECR 2415, at p. 2424). customs territory of the Community.'

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OPINION OF MR MISCHO — CASE C-64/89

(2) Article 5(2) of Regulation No 1697/79 must be interpreted as meaning that a decision as to whether the person liable to pay duties could not detect the error must be based on both objective and subjective criteria. The fact that the customs authority twice conveyed to the person liable the mistaken view which it had adopted and which underlay the customs treatment applied is not in itself sufficient to conclude that the error was not detectable by the person liable.'

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