C-273/90
ECLI:EU:C:1991:354
- Súd
- Súdny dvor Európskej únie
- IČS
- 61990CC0273
- Zdroj
- eur-lex.europa.eu ↗
MEICO-FELL
OPINION OF MR ADVOCATE GENERAL VAN GERVEN delivered o n 26 September 1 9 9 1 *
Mr President, does so for the reason that Article 2(1) of Members of the Court, Regulation (EEC) N o 1697/79 » provides that action to recover duties not collected
1. In the summer of 1983, the customs inspection service of the Oberfinanzbezirk 'may not be taken after the expiry of a Frankfurt am Main carried out an period of three years from the date of entry inspection at the premises of the firm in the accounts of the amount originally Meico-Fell in connection with customs required of the person liable for payment duties payable on goods imported between or, where there is no entry in the accounts, 1 July 1980 and 10 June 1983. The from the date on which the customs debt inspection revealed that Meico-Fell had sent relating to the said goods was incurred'. raw racoon skins to a Canadian firm for dressing and had then re-imported them into the Community, declaring them as duty-free raw skins of other animals. As a result of that incorrect declaration, there was an underpayment of customs duties The parties to the main proceedings and the totalling DM 2 764.85. By a notice of a referring court all agree that that three-year post-clearance recovery of 24 May 1984, period had expired, so that only under the Hauptzollamt (Principal Customs Article 3 of that regulation is post-clearance Office) Darmstadt demanded the payment recovery still possible. That article provides of that amount. as follows:
Following an unsuccessful administrative appeal against that decision, Meico-Fell 'When the competent authorities find that it brought an action which has to be decided is following an act that could give rise by the court which has submitted the to criminal court proceedings that the question for a preliminary ruling. competent authorities were unable to determine the exact amount of the import duties or export duties legally due on the goods in question, the period laid down in Article 2 shall not apply. 2. In support of its action, Meico-Fell 1 — Council Reguládon (EEC) N o 1697/79 of 24 July 1979 claims in substance that the recovery of the on the post-clearance recovery of import duties or export customs duty in question is time-barred. It 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 (OJ 1979 * Original language: Dutch. L 197, p. 1).
I - 5575
OPINION OF MR VAN GERVEN — CASE C-273/90
Under those circumstances, the competent the obligation to pay such duties (Official authorities shall take action for recovery in Journal 1979 L 197, p. 1) to be interpreted accordance with the provisions in force in as meaning that "an act that could give rise this respect in the Member States.' to criminal court proceedings" refers only to an act specifically covered by the criminal law of the Member State concerned, or does 3. Whether post-clearance recovery is it extend to any infringement of tax possible therefore depends on the answer to provisions carrying a longer period of lim- the question whether the error made by itation?' Meico-Fell in its declaration may be regarded as 'an act that could give rise to criminal court proceedings' within the meaning of Article 3 of the regulation. The referring court appears to assume that the incorrect declaration submitted by Meico-Fell does not infringe any specific 4. An analysis of the aims and terms of rule of (German) criminal law, but Regulation No 1697/79 may provide a constitutes only an administrative irregu- better understanding of the legal questions larity ('Ordnungswidrigkeit') which is which arise in the present case. That regu- subject to an administrative fine. The lation indicates the cases in which the Hauptzollamt (Principal Customs Office) competent customs authorities may take Darmstadt, the defendant in the main action for the post-clearance recovery of proceedings, considers that such a breach of customs duties against the person liable for an administrative rule must also be regarded their payment when they find that the as an act liable to criminal court amount initially paid was incorrect or insuf- proceedings within the meaning of Article 3 ficient. The aim here is two-fold: first, to of Regulation No 1697/79. If this is the ensure the uniform application of the case, it will be necessary, pursuant to the Common Customs Tariff by laying down second paragraph of Article 3 of the regu- uniform rules for the post-clearance lation, to apply the limitation period laid recovery of customs duties; secondly, to down in German law for such an ensure that the principles of legal certainty infringement. More precisely, it will be a n d / o r the protection of legitimate ex- necessary to apply Paragraph 169 of the pectation are observed by subjecting post- Abgabenordnung (General Regulation on clearance recovery to a number of lim- Taxation), which provides for a limitation itations. period of five years.
In order to resolve this problem, the Hessisches Finanzgericht referred the following question to the Court for a In principle, the customs authorities must preliminary ruling: commence action to effect post-clearance recovery when they find that all or part of the amount of duties legally due has not 'Is Article 3 of Council Regulation (EEC) been required of the person liable for N o 1697/79 of 24 July 1979 on the post- payment. 2 That basic obligation is qualified clearance recovery of impon duties or by the regulation in two respects. First export duties which have not been required of all, post-clearance recovery becomes of the person liable for payment on goods entered for a customs procedure involving 2 — See the first paragraph of Article 2(1) of the Regulation.
I - 5576
MEICO-FELL
optional or even impossible when the that could give rise to criminal court customs authorities were responsible for the proceedings') but, as regards the definition incorrect or insufficient recovery at the of that concept appearing in the first outset. 3 Secondly, in the cases in which subparagraph, at the most contains only an post-clearance recovery is compulsory or implicit reference to national law. possible, the regulation takes account of the fact that such recovery 'involves some degree of prejudice to the certainty which persons liable for payment have the right to expect from official acts having financial consequences' (second recital of the preamble to the Regulation).
For that reason, Article 2 of the regulation provides for a limitation period of three years, upon The Commission and Meico-Fell differ in the expiry of which the original collection their views about the scope of this reference of duties is to be regarded as definitive. to national law: should the meaning of the However, that period is not applicable expression 'an act that could give rise to where the incorrect or insufficient recovery criminal court proceedings' be determined is the result of 'an act that could give rise to by applying Community law criteria (which criminal court proceedings' done by the are thus uniform in character) to national person liable for payment. In such a case, law (as the Commission considers) or is it a action for recovery takes place 'in concept whose meaning varies from one accordance with the provisions in force in Member State to another and which can be this respect in the Member States' (see determined only on the basis of the Article 3 of the regulation) — in other applicable national law (as Meico-Fell words, the (presumably longer) limitation considers)? I take the view that, in order to period which is laid down in national law in ensure that Community law is applied respect of the act concerned is applied uniformly and that the persons liable are instead of the ordinary (or rather, treated equally, which is one of the aims of Community) limitation period of three Regulation No 1697/79 (see above, at years. paragraph 4), the Commission's view is to
be preferred. That view is also supported by the case-law of the court, according to which the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning 5. Only the Commission and Meico-Fell and scope must normally be given an inde- have submitted observations to the Court. pendent and uniform interpretation They both agree that the first paragraph of throughout the Community and that inter- Article 3 of Regulation No 1697/79 pretation must take into account the context implicitly but definitely refers to national of the provision and the purpose of the
law. Indeed, it is apparent from the wording relevant regulations. 4 In other words, it is of Article 3 that it does contain an express for the national court to determine on the reference to national law as regards the basis of the national law applicable, but modalities of recovery, including the matter applying interpretive criteria provided by the of the applicable limitation periods (in Court, whether there is 'an act that could particular, where the irregularity contained give rise to criminal court proceedings'. in the declaration was the result of 'an act 4 — See the judgment in Case 327/82 Ekro v Produkuchap voor 3 — See Anide 5 of the Regulation. Vee en Vlees [1984] ECR 107, at paragraph 11.
I - 5577
OPINION OF MR VAN GERVEN — CASE C-273/90
6. In the observations submitted to the person liable ought to have known that his Court, two possible criteria are advanced: a conduct was unlawful and/or led to the narrow criterion (advocated by Meico-Fell), insufficient collection of customs duties. according to which the term 'an act that 'Acts that could give rise to criminal could give rise to criminal court court proceedings' would then cover proceedings' refers only to national criminal infringements of the rules concerning law in the strict sense and a broad criterion customs declarations, at least where rules (advocated by the Commission), according specifically laying down a duty to take care to which the expression in question could for the person liable are concerned. also include acts in respect of which the Member States have provided for penalties of a non-criminal nature (such as adminis- trative penalties, for example).
Whilst this criterion may seem more suitable for achieving a uniform application of The narrow criterion advocated by Community law and the equal treatment of Meico-Fell has the advantage of being easy persons liable for customs duties in the to apply but it has no Community content Member States, it also has a number of and may lead to the unsatisfactory situation drawbacks. First of all, it is a vague criterion in which the post-clearance recovery of which national courts would have to apply customs duties following the commission of in the context of their own legal system, and a single act is subject to the limitation this, too, would ultimately lead to results period applying in Community law or the varying from one Member State to another; 'longer' limitation period, depending on moreover, being vague, the criterion does whether a Member State has made the not sit well with the principle of legal decision (which in the end is quite arbitrary) certainty (on which Regulation N o 1697/79 to punish that act under criminal law or is also based). Secondly, it seems to me that under administrative law. The uniform the criterion is difficult to reconcile with the application of the Common Customs Tariff scheme of Regulation No 1697/79: the and the equal treatment of persons liable for regulation leaves no doubt that the lim- customs duties will thus be ensured only to itation period of three years laid down by a limited extent. Community law is also applicable when the incorrect or insufficient collection of duties was due to the negligence of the person liable; it is only by way of exception, namely when the acts committed are liable 7. It is precisely with a view to achieving a to criminal court proceedings, that the uniform application and interpretation of period laid down by national law, which is Article 3 that the Commission proposes to ex hypothesi longer, is applicable. However, interpret the expression 'an act that could the criterion advocated by the Commission give rise to criminal court proceedings' in would have the result that the longer period such a way that the presumably longer lim- would be applicable whenever the incorrect itation period applying in national law or insufficient collection of duties is due to becomes applicable whenever the person culpable negligence, punishable under liable for payment acted in bad faith, that is national law, on the part of the person liable to say whenever the incorrect or insufficient for duties, irrespective of the nature and collection of duties is attributable to his gravity of the penalty laid down for such culpable negligence or even when the negligence. This does not seem to me to be
I - 5578
MEICO-FELL
compatible with the scheme of the regu- Spanish, Portuguese and Greek versions lation. suggest that these acts are rather those to which sanctions are attached which, although they must be imposed by a court (not necessarily a criminal court), have a 8. As a result of the foregoing considera- deterrent or repressive character. It is tions, I find that the criterion proposed by noticeable, moreover, that in other Meico-Fell leads to a too narrow inter- Community instruments in which pretation of the expression 'an act that expressions like 'an act that could give rise could give rise to criminal court to criminal court proceedings' (or similar proceedings' and that the criterion expressions) are used, expressions belonging advocated by the Commission leads to an to criminal law in the strict sense are used in interpretation which is too broad. It is the French, Italian, Spanish and Portuguese 5 therefore necessary to find an 'intermediate' versions. In my view, this is a first in criterion by which the requirements for the dication that in the regulation in question uniform application of Community law and in the present case the expression 'an act the equal treatment of payers of customs that could give rise to criminal court duties, on the one hand, and the proceedings' must not be given a strict requirements of the principles of legal meaning but a substantive meaning, certainty and the protection of legitimate referring more specifically to the deterrent expectation, on the other hand, may be and repressive character of the sanction reconciled. chosen by a Member State.
In seeking such a criterion, the obvious starting point is to look at the way in which the expression 'an act that could give rise to criminal court proceedings' is rendered in the various language versions. It is 9. Support for this view can, however, also noticeable that some versions, in particular be found in another provision of European the Danish, German, English and Dutch law, namely Article 6 of the European versions, which are, respectively, 'en Convention for the Protection of Human handeling, der vil kunne undergives straf- Rights, which, like a provision of feretlig forfølgning', 'Handlungen, die straf- Community law, is intended to be inter rechtlich verfolgbar sind', 'an act that could preted and applied in the most uniform way give rise to criminal court proceedings' and possible in various states. In this regard, it 'strafrechtelijk vervolgbare handelingen', hardly needs to be stated that the Court appear to be narrower (they appear to refer to criminal law in the strict sense) than the 5 — Three examples may be quoted here. In Council Regu French, Italian, Spanish, Portuguese and lation (EEC) N o 2M4/87 (OJ 1987 L 201, p. 15), the corresponding expressions for criminal proceedings used Greek versions (which are, respectively in Article 2(2) are poursuites pénales, azioni penali, diligencias penales and procedimentos penais. In Council 'actes passible de poursuite judiciaires Directive 89/592/EEC o( 13 November 1989 coordinating repressives', 'atto passibile di un'azione regulations on insider dealing (OJ 1989 L 334, p. 30) the corresponding expressions for judicial proceedings under giudiziaria repressiva', 'un acto que puede criminal law as in Article 10(3) are poursuites judiciares à dar lugar a la incoación de un proceso caractère pénal, procedimenti giudiziari di carattere penale, procedimientos judiciales de indole penai and judicial punitivo', 'um acto passivel de processos judiciais de caracter penal. In Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, procedimento judicial repressivo' and 'στη regulations and administrative provisions relating to legal συνέχεια πράξεως γιά την οποία έχει επ expenses insurance (OJ 1987 L 185, p. 77) the corre- sponding expressions for criminal proceedings used in ιληφθεί η δικαστική αρχή'). The broader Article 2(1) are procedure pénale, procedimento penale, expressions used in the French, Italian, procedimiento penal and processo penal.
I - 5579
O P I N I O N OF MR VAN GERVEN —CASE C-273/90
accepts as a criterion for the interpretation the German authorities punished with an of provisions of Community law an inter- administrative fine ('Ordnungswidrigkeit'), pretation which is in conformity with the that is to say an infringement of the same aforementioned convention. 6 nature as that in question in the present case, was to be regarded as 'an offence' within the meaning of Article 6(2) and (3) of the Convention. In taking this view, the European Court of Human Rights attached only limited importance to the fact that such The European Court of Human Rights was an offence was 'decriminalized' in national asked to interpret the expression 'criminal law, in the sense that it was removed from charge' (in the French text of the Treaty, the field of criminal law. The fact that 'accusation en matière pénale') appearing (i) the legal rule whose infringement was in Article 6(1) of the aforementioned punished by an administrative fine was a convention and the expression 'everyone legal rule of a general nature (that is to say charged with a criminal offence' (in the one applicable to all citizens as road users) French text, 'toute personne accusée d'une and the fact that (ii) the sanction attached infraction') contained in Article 6(2) and (3) to the offence in question was deterrent and in connection with infringements which, punitive in character 9 were considered more under national law, are not punished by important. In the Engel and Lutz judgments, criminal law penalties but administrative law the European Court of Human Rights also penalties. In its judgment of 1976 in the stated that a 'criminal charge' and an Engel case, 7 the European Court of Human 'offence' existed where the sanction imposed Rights held that the expression 'criminal for a specific act was so 'severe' that it had charge' had an independent meaning in the to be regarded as belonging to the 'sphere' scheme of the convention so that definitions of criminal law. 10 in national law were certainly indicative but not decisive. In order to determine whether a specific sanction laid down by national law is criminal in nature, the European Court of Human Rights analyses the substance of the sanction.
In the Öztürk judgment of 1984, 8 for In short, the safeguards contained in Article example, it held that a traffic offence which 6 of the European Convention for the Protection of Human Rights will f> — See in this regard the judgment in Case 36/75 Rutili v accordingly be applicable either where an Minister for the Interior [1975] ECR 1219 in which it wis act is punished by the national authorities pointed out that the limitations on the powers of the Member Sutes in the matter of the supervision of aliens by means of a sanction which belongs to provided for by a Community law instrument could be regarded as being in conformity with the European criminal law in the strict sense, or where a Convention for the Protection of Human Rights. generally applicable rule to which sanctions 7 — The European Court of Human Rights, Engel and Others, of a deterrent and punitive nature (préventif judgment of 8 June 1976/23 November 1976, Publication! of the European Court of Human Rights, A Series, Volume et répressif) is involved, or when, owing to 22, in particular paragraphs 80 and 81. 8 — Judgment of 21 February 1984, Publication of the European Court of Human Rights, A series, Volume 73, in 9 — See paragraphs 52 and 53 of the judgment. particular paragraphs 49 to 54, confirmed in the Lutz 10 — See paragraphs 82 and 85 of the judgment in Engel, as judgment of 25 August 1987, ibid, A Series, Volume 123, they were later clarified by the judgments in Qzturk in particular paragraphs 50 and 55. (paragraph 54) and Lutz (paragraphs 54 and 55).
I - 5580
MEICO-FELL
its degree of seventy (degré de gravité), the What does this mean specifically as far as penalty for an act must be regarded as the present case is concerned? In my view, falling within the 'criminal' sphere (la the referring court may conclude that 'an matière pénale). act that could give rise to criminal court proceedings' exists first of all where the act in question is one which under the applicable national law is punished with a criminal sanction in the strict sense; and, secondly, where the act is one which infringes a general provision and under the applicable national law is punished with a sanction which is of such a deterrent or punitive character a n d / o r characterized by
10. I consider that the criteria used by the such a degree of gravity that it must be European Court of Human Rights for the regarded as being equivalent to a criminal interpretation of the expressions 'criminal penalty in the strict sense. charge' and Offence' within the meaning of Article 6 of the European Convention for the Protection of Human Rights may also be used in the present case for the interpre- tation of the expression 'an act that could 11. One objection which can be made give rise to criminal court proceedings'.
This against my proposal to interpret the is all the more true since where it must expression 'an act that could give rise to assess the compatibility of national sanctions criminal court proceedings' in Article 3 of with Community law the Court also uses Regulation N o 1697/79 by taking account uniform criteria which are not based on the of the way in which the European Court of formal classification of the sanction under Human Rights interprets the expressions national law but takes account of the 'criminal charge' and 'offence' in Article 6 substance of those sanctions.
More of the European Convention for the particularly, the Court requires sanctions Protection of Human Rights is that the last- which the national legislature attaches to mentioned article is intended to guarantee infringements of Community law to be individuals a fair and public hearing (even in 'effective, proportionate and dissuasive'." the course of an administrative procedure Moreover, where Community law itself which, however, ends in judicial provides for certain sanctions, for example proceedings) whereas Article 3 of the regu- in Article 15 of Regulation No 17 12 (with lation in question provides for the impo- regard to which it is stated in paragraph (4) sition of a longer limitation period to the that they are not to be of a criminal law detriment of individuals. I do not consider, nature), the Community legislature also uses however, that this justifies the use of administrative sanctions which are no less different methods of interpretation in the dissuasive or punitive than criminal two cases. After all, in both cases the legis- sanctions in the strict sense.
This shows lature is seeking to guarantee to individuals once again that it is not the formal classifi- proper legal protection. This also the case cation of the sanction which matters, or is where a provision provides for a limitation of prime importance at least, but its nature period. The fact that, in order to determine and degree of gravity. the length of the limitation period, it is necessary in this regard to take account of 11 — Sec, for example, the judgment in Case C-326/88 Hamen & Sen I/S[1990] ECR 1-2911. the gravity of the offence and therefore of 12 _ Regulation N o 17 of the Council of 6 February 1962: the nature and gravity of the sanction, First Regulation implementing Articles 85 and 86 of the regardless of its strict classification under Treaty (OJ English Special Edition, 1959-1962, p. 87).
I-5581
OPINION OF MR VAN GERVEN —CASE C-273/90
national law, likewise meets the need for gravity should be treated equally and proper legal protection and, more persons committing infringements of particularly, the requirement that persons different gravity should be treated committing infringements of the same differently.
Conclusion
12. For all those reasons, I propose that the question referred for a preliminary ruling should be answered as follows:
'Article 3 of Council Regulation (EEC) N o 1697/79 of 24 July 1979 on the post- clearance recovery of import duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obli- gation to pay such duties is to be interpreted to the effect that the expression "an act that could give rise to criminal court proceedings" must be understood as meaning (i) acts which are punished under the applicable law by a formal criminal sanction; (ii) acts which infringe generally applicable rules and which attract a penalty which is of such a deterrent and punitive nature and/or characterized by a degree of gravity that it must be regarded as being equivalent to a formal criminal sanction.'
I-5582