C-348/89

MECANARTE

OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 6 February 1991 *

Mr President, Germany. Accordingly they were imponed Members of the Court, free of customs duties under the Community customs procedure.

1. The questions with which these proceedings are concerned relate to the After receiving a report from the competent interpretation and validity of Article 5(2) of German authorities that the certificate Council Regulation No 1697/79 of 24 July produced was invalid, since the goods 1979 on the post-clearance recovery of covered by it had originated in the German import duties or expon duties which have Democratic Republic, the Portuguese not be required of the person liable for customs authorities proceeded to effect payment on goods entered for a customs post-clearance recovery of duties payable on procedure involving the obligation to pay the goods in question. such duties, 1 and to the interpretation of Article 4 of Commission Regulation No 1573/80 of 20 June 1980, 2 which lays down provisions for the implementation of Article 5(2) of Regulation No 1697/79. Mecanane, relying on the applicable Community legislation, challenged the legality of the decision to recover the duties before the Tribunal Fiscal Aduaneiro, Oporto; that court referred to the Court of Referring you to the Report for the Hearing Justice for a preliminary ruling eight for matters of detail, I will briefly questions which I shall summarize and summarize the facts underlying the dispute consolidate as follows: in the main proceedings.

Whether Article 5(2) of Regulation No 2. Mecanarte — Metalúrgica da Lagoa Lda 1697/79 grants the competent authorities a ('Mecanarte') imponed into Portugal a discretion whether or not to effect post- consignment of 42 bundles of hot-rolled clearance recovery; and if so, whether such steel sheets which it had purchased from its a provision is valid in the light of the funda- supplier in the Federal Republic of Germany mental principles laid down in the Treaty and, for the purpose of putting the goods (first and second questions); into circulation, produced a certificate issued by the competent authorities in Düsseldorf indicating that the goods had originated in the Federal Republic of

Whether, pursuant to Article 4 of Regu- The Court of Justice has consistently held lation No 1573/80, the Commission is that that provision 'must be interpreted as competent to adopt only decisions not to meaning that if all those requirements are proceed with the recovery of amounts of fulfilled the person liable is entitled to the ECU 2 000 or above, or whether it may waiver of the recovery of the duty in also adopt decisions to proceed with question'. 3 recovery; and whether, in cases where a person liable submits a reasoned request for reversal of a decision to effect recovery adopted by the national authorities, it is for the latter or for the Commission to give a That dictum of course implies that the decision on such a request (sixth and eighth decision of the competent authorities is questions) ; bindingly linked to fulfilment of the conditions prescribed for non-recovery; once it is established that those conditions are fulfilled, the national authorities are required to waive recovery.

Finally, whether, in view of the fact that the Portuguese constitution provides for the primacy of international law over domestic law, the incompatibility with Community It follows from the foregoing that the law of a national provision renders the latter question concerning the validity of the unconstitutional, with the result that an provision in question is devoid of purpose. immediate reference for a preliminary ruling Since it does not confer any discretionary is unnecessary (seventh question). power on the competent authorities, but rather a power combined with a duty, it does not conflict with any of the funda- mental principles safeguarded by the Treaty, such as non-discrimination.

The questions in fact seek to determine: 5. As regards the term 'competent auth- orities', it must first be pointed out that, if the literal wording of Article 5(2) is relied on, it must be concluded that only an error committed by the actual authorities what meaning is to be attributed to the term responsible for recovery can be taken into 'error' made by the competent authorities; account. The Commission contends, however, that the term is to be interpreted as meaning that an error on the part of the State exporting the goods is also to be taken into consideration, and it refers in that who the 'competent authorities' are; regard to Article 2 of Regulation No 2380/89, 4 which replaced Regulation N o 1573/80, in which it is expressly stated that the competent authorities may also be those in the Member State where the error was and whether a person liable who, in good noticed. faith, provides incorrect or incomplete information has nevertheless satisfied 'all the provisions laid down by the rules in force as far as his customs declaration is concerned'. The fact that that clarification does not appear among the provisions of Regulation No 1573/80, which was in force at the material time but was not introduced until Taking a systematic approach and having the new regulation was adopted, does not regard to the subject-matter of the dispute, I appear to me to be decisive; I concur with shall examine the last point first. the Commission's view that it did not change the scope or meaning of Article 5(2) but merely confirmed it.

Since good faith and compliance with the applicable provisions are two distinct conditions which must be examined Furthermore, there is no doubt that the very separately, let me say immediately that the purpose of the provision would be condition of observance of all the provisions undermined if it were interpreted restric- in force concerning the customs declaration tively. A restrictive interpretation would in must be deemed to have been met by the fact lead to discriminatory treatment, since person liable even where, in good faith, he the same error would be taken into account has provided the competent authorities with incorrect or incomplete information. 4 — OJ 1989 L 225, p. 30.

That is confirmed by the judgment in Van Gend en Loos of 13 November 1984, 6 First it must be pointed out that cases of concerning the remission of import duties, error cannot be limited to mere calculation in which the legality was challenged of a or copying errors but extend to all types of refusal to grant a remission on the ground, error made by the competent authorities, inter alia, that the national authorities had and thus also to errors concerning the inter- failed to verify the authenticity of pretation and application of the rules certificates of origin — which were applicable to each case. subsequently found to be false — and had thus caused the agents concerned to entertain legitimate expectations. The Court stated that 'the role of [the customs] officers in regard to the initial acceptance of declar- Conversely, where the error is ations in no way prevents the customs auth- caused — and it is immaterial whether in orities of the Member States from good or bad faith — by the person liable subsequently checking their veracity, nor himself or by third parties, in other words does it prevent effect being given to the where the competent authorities have been consequences of those checks, as is clear in led into error, it does not seem to me, in particular from Article 10(2) of Regulation principle, that in such circumstances the No 79/695'; and, as I have said, that error can be relied on for the purpose of directive is applicable to the present case. waiving recovery.

In the case with which these proceedings are From the foregoing observations it is concerned, the certificates of origin for the therefore clear that there was no error imported goods, produced by Mecanarte attributable to the competent authorities and issued by the competent authorities of within the meaning of Article 5(2) of Regu- the exporting Member State, were later lation No 1697/79. It follows that one of found to be invalid. the three preconditions for the person liable to be entitled to a waiver of recovery in his case was not fulfilled.

Whilst the literal wording of the article contains nothing to give the impression that Those dicta of the Court thus facilitate a the Commission's competence is limited to comprehensive answer to the questions on decisions waiving recovery, it should none this problem submitted by the national the less be noted that it is current practice in court: the competent authorities must refer the Member States to refer to the the matter to the Commission for Commission regarding only those decisions consideration only when they decide to (needless to say when the amount of duties waive recovery. Similarly, even when a to be recovered is equal to or exceeds reasoned request for reversal of the national ECU 2 000). authorities' decision to proceed with recovery is made, the competent authorities are under no obligation to pass the case on to the Commission since in such cases the uniform application of Community law can be guaranteed by the national courts, a reference being made, if necessary, to the That practice is in conformity with an inter- Court of Justice for a preliminary ruling. pretation of the provision in question which derives from the very purpose of the power of decision conferred on the Commission; and it was to that effect that the Court of Justice gave judgment recently. 7The Court 8. That brings us to the seventh question stated that Article 4 did not cover a case in submitted by the national court: whether in which the competent authorities were a constitutional system like that of Portugal, persuaded that the terms of Article 5(2) of which provides for the primacy of inter- Regulation No 1697/79 were not fulfilled national law over domestic law, the incom- and therefore considered themselves bound patibility of a domestic provision with to effect recovery — the object being, as the Community law renders that provision court itself stated, having regard in unconstitutional, so that the court is not particular to the purpose of the provision in required immediately to seek a preliminary question, to ensure 'the uniform application ruling on the interpretation of Community of Community law', an aim which calls for law. review by the Commission only in the case of decisions not to effect post-clearance recovery.

between Portuguese customs law and justify any delay in applying a Community Community customs law', in that the former provision which has direct effect and grants to the national authorities the power therefore, by virtue of the primacy of to take decisions concerning recovery Community law, in setting aside the whereas the latter confers that power on the national provision that is regarded as Commission. In those circumstances, which incompatible. are at variance with the principle of primacy enshrined in the Portuguese constitution, the national court considers that is under an obligation to seek a ruling as to the constitutionality of the provision from the Portuguese Constitutional Court, and that I refer in that connection to the well-known only that court is empowered to make a judgment in Simmenthal, 8 in which the reference for a preliminary ruling, a Court stated that 'any provision of a situation that might be contrary to the third national legal system and any legislative, paragraph of Article 177 of the Treaty. administrative or judicial practice which might impair the effectiveness of Commission law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions In fact, I am in some doubt as to the which might prevent Community rules from relevance of the question and the appropri- having full force and effect are incompatible ateness of its wording; and — why conceal with those requirements which are the very the fact — as to the existence of any essence of Community law'. 'manifest conflict' of the relevant national provision with the Community rules at issue. Nevertheless, I agree with the Commission that in any event the problem raised by the Portuguese court deserves an answer from the Court of Justice, which should in fact That means, to leave the matter clear reflect the terms of the problem rather than beyond doubt, that a national provision or those of the question as formulated. practice which defers the application of a Community provision pending the outcome of an investigation into the constitutionality of the allegedly unlawful domestic provision is incompatible with Community law.

has itself found a 'manifest conflict' between However, the position is entirely different a national provision and a Community where the court is not convinced that there provision, without its being necessary for is a conflict but entertains doubts in that any preliminary ruling to be given by the respect, in that it is uncertain as to the inter- Court of Justice. I would add, at this stage, pretation of the Community provision. It is that such a situation is likely to arise, as far to such cases, and only to such cases, that as courts of last instance are concerned, Article 177 relates in granting to the only when, as the Court made clear in its national court the power — and if it is a judgment in CILFIT, 9 'the correct court of last instance placing it under an application of Community law is so obvious obligation — to seek a preliminary ruling as to leave no scope for any reasonable from the Court of Justice. In such cases, of doubt. The existence of such a possibility course, the principle of primacy will apply must be assessed in the light of the specific only if it appears from the Court's interpre- characteristics of Community law, the tation that the national provision is particular difficulties to which its interpre- unlawful, but not when that provision is tation gives rise and the risk of divergences shown to be in harmony with Community in judicial decisions within the Community'. law.

9. In the light of the foregoing considerations, I conclude by suggesting that the Court reply as follows to the questions referred to it by the Tribunal Fiscal Aduaneiro, Oporto:

(d) The national court is under an obligation to ensure the full and immediat application of Community provisions which have direct effect, if necessary setting aside any national provision, even in the field of constitutional law which makes application of the Community provision conditional upon the outcome of a domestic procedure for the review of constitutionality.'

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