C-80/89
ECLI:EU:C:1990:94
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OPINION OF MR DARMON — C A S E C-80/89
O P I N I O N OF MR ADVOCATE GENERAL DARMON delivered on 6 M a r c h 1 9 9 0 *
Mr President, Moreover, the same figure applied in 1982. Members of the Court, For imports of the same product from the Kingdom of Spain, a reduction coefficient of 6 0 % was applied, and it was decreased to 3.2% after the adoption of Regulation (EEC) N o 1524/70 of the Council of 20 July 1970 on the conclusion of 1. The impact on traders acting in good an Agreement between the European faith of an error committed by a national Community and Spain and on the provisions customs administration is again the subject for its implementation. 2 The Hauptzollamt, of questions submitted by the Finanzgericht relying on the German customs tariff Hamburg (Federal Republic of Germany) manual, erroneously applied the rate of for a preliminary ruling by the Court. The 7.5%, and therefore the reduced rate Court has already been called on to give a of 3 % , which covered, since the adoption of ruling on similar problems in its judgment in Council Regulation (EEC) No 3000/82 of Binder. ' 19 October 1982, 3 kraft papers and board not otherwise described. The German Customs tariff manual was rectified by Federal Ministry of Finance Order No 153/83 of 17 August 1983.
2. The Court is acquainted with the facts of the present case. Between January and September 1983, Erwin Behn Verpackungs- bedarf G m b H ('Behn') imported into the Federal Republic of Germany from the Kingdom of Spain, which had not yet acceded to the Community, and from other non-member countries, unbleached paper 3. By three notices of 19 and 26 October for large-capacity sacks falling under and 2 November 1983, the Hauptzollamt Common Customs Tariff subheading effected post-clearance recovery of a total 48.01 C II (a). The goods were declared of D M 4 886.40 in respect of uncollected monthly under the collective declaration customs duty. Behn lodged an objection to system. The Hauptzollamt (Principal those notices. Under the procedure provided Customs Office) Itzehoe assessed the for in Commission Regulation (EEC) N o customs duty as 3 and 7.5% respectively on 1573/80 of 20 June 1980, 4 in particular the basis of Behn's declarations and the Article 4 thereof, the Federal Republic of information then contained in the German Germany requested the Commission to give Gebrauchszolltarif (customs tariff manual). a decision. On 4 November 1985 the The rate applicable to imports from non-member countries of kraft paper for 2 — OJ, English Special Edition, Second Series I, External Relations (1), p. 269. large-capacity sacks was 8% for 1983. 3 — Amending Regulation (EEC) N o 950/68 on the Common Customs Tariff (OJ L 318, 15.11.1982, p. 1). 4 — Laying down provisions for the implementation of Article * Original language: French. 5(2) of Council Regulation (EEC) No 1697/79 on the 1 — Judgment of 12 July 1989 in Case 161/88 [1989] post-clearance recovery of import or export duties (OJ ECR 2415. L 161,26.6.1980, p. 1).
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Commission decided that post-clearance hand, the Court has had occasion to find recovery was appropriate. that Article 5(2)
4. The Finanzgericht (Finance Court) Hamburg, before which an action was 'must be interpreted as meaning that if all brought, referred two questions to the those requirements are fulfilled the person Court for a preliminary ruling concerning liable is entitled to waiver of the recovery of the validity of the Commission decision of 4 the duty in question'. 6 November 1985 and the interpretation of Article 5(1) and (2) of Regulation (EEC) N o 1697/79 of 24 July 1979.5
It also analysed the provisions of that 5. Article 5 of that regulation imposes three paragraph in Binder. limitations on the right of recovery:
(i) no action may be taken for recovery 7. The first question concerns Article 5(2) where the amount collected, being and the second Article 5(1). However, I lower than the amount legally due, was shall consider the second question first calculated on the basis of information since, as I stressed in my Opinion in given by the competent authorities Binder,7 if the error in question fulfils all themselves which is binding on them the conditions laid down in Article 5(1), (paragraph 1, first indent) ; post-clearance recovery is absolutely impossible. It is only if that is not the case that it is incumbent on the Commission to (ii) similarly, no action may be taken decide whether or not recovery should take where that amount was calculated on place under Article 5(2). the basis of provisions of a general nature subsequently invalidated by a court decision (paragraph 1, second indent) ; 8. Persons liable to pay customs duty are entitled to ask the national customs admin istration for its opinion on certain aspects of (iii) the competent authorities may refrain the rules concerning the goods that they from effecting recovery in view of an wish to declare. But academic writers have error which could not have reasonably expressed the view that the opinion given by been detected by the person liable customs authorities has no legal value and is (paragraph 2). mere information not binding on the admin istration. 8 By referring to 'information given by the competent authorities themselves 6. It does not seem that Article 5(1) has which is binding on them', Article 5(1) given rise to any case-law. On the other 6 — Judgment of 22 October 1987 in Case 314/85 Foto-Front HaupaoUamt Lübeck-Ost[l987] ECR 4199, paragraph 22. 5 — On the post clearance recovery of import duties or export duties which have not been required of the person liable 7 — Paragraph 22. for payment on goods entered for a customs procedure 8 — Claude J. Berr and Henri Tremeau, 'Le droit douanier', involving the obligation to pay such duties (OJ L 197, Régimt det operažiuni de commerce international en France et 3.8.1979, p. 1). dam la CEE, 2nd edition, No 252, p. 177.
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sought to take account of the German a court decision. On the other hand, in the system of 'binding customs tariff notices' absence of such a court decision, legitimate ('verbindliche Zolltarifauskünfte') issued expectations cannot be based on a under paragraph 23 of the German Customs document of a general nature which Law of 14 June 1961, 9 of which this Court conflicts with provisions having legal force. recognized the compatibility with the To decide otherwise would be to reverse the Common Customs Tariff in its judgment in hierarchy of legal rules.
Moreover, that Stenters.,0 It is therefore necessary to course was followed in German law since determine whether the German customs a judgment of the Bundesfinanzhof" tariff manual, which is a document of a expresses the view that the person liable general nature, can be deemed to constitute cannot rely on the validity which he 'information given by the competent auth- accorded to an order of the Federal orities themselves' or whether that term Ministry of Finance that conflicted with must be limited to information given on a certain legislative provisions.
According to case-by-case basis by the administration to a that court, a decision to the contrary would particular trader with respect to the import enable legislative provisions to be over- of specific goods. ridden by an administrative order of a general nature. Legitimate expectations can thus only be protected within a specific legal relationship between the competent adminis- trative authority and the person liable to make payment. 9. It seems to me that only the second hypothesis is correct. Article 5(1) envisages two cases where post-clearance recovery is possible: where the error derives from 'information' given by the competent auth- orities themselves (first indent) or where it derives from 'provisions of a general nature subsequently invalidated by a court decision' 10. In view of the fact that it is general and (second indent). If the Community legis- indicative in character, it brings together the lature had wished to bring within the rules of national law and Community law ill-defined concept of 'information' and it does apply to the particular situation provisions of a general nature such as of a given trader, the German customs tariff administrative directives or regulations it manual cannot be classified as constituting would have included in the first indent the information given by a competent authority expression 'provisions of a general nature' or raise an absolute bar to post-clearance which appears in the second indent. It must recovery. I propose that the Court answer therefore be concluded that Article 5(1), the second question to that effect. which merely applies the principle of the protection of legitimate expectations, means that such expectations may be based on particular information given by the customs authorities to a person declaring goods or to any trader concerned, or on a document of a general nature subsequently invalidated by
11. I think, however, that there is a point which ought to be clarified. In its written 9 — Paragraph 23, Bundttgetttzblatt I, p. 737; Paragraphs 28 to 31 of the German Genera] Customs Code of 29 November observations, 12 the Commission expresses 1961, Bundtsgeietzblatt I, p. 1937. 10 — judgment of 24 November 1971 in Case 30/71 Siemen v Hauptzollamt Bad Rcichmhall [1971] ECR 919, paragraphs 11 — Judgment of 18 March 1986, VII R 55/83 BFHE 146, 294. 10 to 13. 12 — At p. 8 of the French translation.
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the view that the first indent of Article 5(1) protection of legitimate expectations to be is concerned only with the German system invoked on the basis of the German customs of 'binding customs tariff notices'. I must tariff manual is inimical to the primacy of point out that there is nothing either in the Community law. I do not consider that to first indent of Article 5(1) or in the be the case and I refer the Court to my preamble to Regulation N o 1697/79 to views on that difficulty set out in my indicate that that was the intention of the Opinion in Binder1* — it will be recalled Community legislature. The Commission that the Court confirmed my analysis when states in its written observations ' 3 that a considering, in its judgment, whether the similar system exists under Spanish law. It trader in question might found legitimate seems to me to be wholly contrary to the expectations on the inclusion of an incorrect principle of equality between Member States rate in the German customs tariff manual. and to the principle of legal certainty to In so doing, the Court, as I advocated, drew accept, solely on the basis of assertions as a distinction between persons who import to the Commission's intentions, that a goods as a business activity and those who provision of a Council regulation, expressed do not. After stating that the company in general terms, without any particular concerned in the Binder case was qualification in the preamble to it, should be applicable only to a system established in a particular Member State. 'a commercial trader whose activities essen- tially consist of import-export operations \
12. In its first question, the national court raises doubts as to the validity of the Commission decision ordering post- the Court inferred that: clearance recovery. It states that the Official Journal of the European Communities cannot be consulted at the premises of the Haupt- zollamt or, no doubt, at the offices of Behn; 'such a company cannot derive a legitimate that the rate of import duty for goods from expectation as to the applicable rate of duty Spain was not easy to determine in view of from the fact that a Commission proposal the reduction coefficient which had to be exists in which that rate appears and from applied to the figure given in the Common the fact that it was incorporated in a Customs Tariff; and finally that the German national tariff manual' customs tariff manual could be a lawful basis for legitimate expectations on the part of Behn. It appears to that court, therefore, that that error could not reasonably have and concluded that: been detected by Behn and that the Commission's decision is therefore contrary to Article 5(2) of Regulation N o 1697/79.
'it does not, therefore, appear unreasonable to expect that trader to ascertain by reading the relevant Official Journals, the 13. In that regard the Commission points Community duty applicable to the oper- out that to allow the principle of the ations which he carries out, even if in the
13 — At p. 9 of the French translation. 14 — Paragraphs 10 to 16.
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present case the rate in question applied customs declarations it is entitled to use the only to products originating in Yugoslavia system of collective declarations, which is and had been laid down in an international made available only to competent and trade agreement concluded by the experienced importers. ' 6 Community with Yugoslavia'.,5 15. I consider therefore that it must be 14. Those dicta must also be applied to the stated in reply to the first question that present case. Behn imports by way of consideration of it has disclosed no factor of business activity, being a specialist dealer in such a kind as to affect the validity of the packaging materials, and moreover, for its Commission's decision of 4 November 1985.
16. I therefore suggest the following answers to the questions submitted:
'(1) Article 5(1), first indent, of Council Regulation (EEC) N o 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 involving the obligation to pay such duties must be inter- preted as not referring to a tariff manual for national use which sets out the rules of national law and Community law, including those on the Common Customs Tariff.
(2) Examination of the question submitted to the Court has disclosed no factor of such a kind as to affect the validity of the Commission's decision of 4 November 1985 — COM(85) 1709 final — addressed to the Federal Republic of Germany.'
16 — Article 20(1) of Council Directive 79/695/EEC of 24 July 1979 on harmonization of the procedures for the release 15 — Case 161/88, ¡upra, paragraph 22. of goods for free circulation (OJ L 205, 13.8.1979, p. 19).
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