C-371/90

Beirafrio, invoking Community law, contested the legality of the decisions to 2. Beirafrio — Indústria de Produtos undertake post-clearance recovery before Alimentares, Lda ('Beirafrio') sought to the Tribunal Fiscal Aduaneiro (Customs import several consignments of frozen hake Court), Oporto. That court referred to the from Chile and applied to the Customs Court of Justice for a preliminary ruling Tariff Nomenclature and Policy Division of four questions on the interpretation of the the Directorate General for Customs for first indent of Article 5(1) of Regulation No information as to the rates of customs duties 1697/79, pursuant to which the customs in force under the generalized preference authorities may not recover uncollected scheme in respect of that product. That duties where the amount paid was based on division gave notice by telex that the rate 'information given by the competent auth- applicable to frozen hake from Chile was orities themselves which is binding on them'. 6%.

Relying on that information, Beirafrio imported seven consignments of frozen hake 3. The national court's first question seeks to establish whether such information * Original language: Italian. includes details of the rates of customs 1 — OJ 1979 L 197, p. 1. duties in force.

I - 2724

BEIRAFRIO v ALFÂNDEGA DO PORTO

Let me say first of all that that provision It is thus confirmed that, before the entry merely prohibits the post-clearance recovery into force of Regulation No 1715/90, the of duties ° which are in fact due ° where binding nature or otherwise of the the calculation was based on information information given by customs authorities that was binding on the authorities which was a matter for national legislation, in so gave it; however, no details are given as to far as only the latter could determine what information should be regarded as whether information, and what type of binding on the authorities which gave it. information, was to be regarded as binding, with the result that no action could be brought for recovery of duty that was legally due but had not been collected.

It must be pointed out that, in the meantime, Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs auth- For the purposes of the present case, it need orities of the Member States concerning the merely be observed that the relevant classification of goods in the customs Portuguese provisions do not conflict with nomenclature 2 has been adopted. That the aim pursued by Article 5(1), as is, regulation in fact lays down uniform rules moreover, confirmed by Regulation No on the matter, indicating that the only 1715/90, which confirmed the binding information which is to be treated as nature of information only as regards tariff binding is that concerning tariff classifi- classification. Thus, with respect to cation; the same regulation also lays down Beirafrio's objections concerning the common procedures for obtaining such Portuguese legislation in question and more information and specifies the authorities particularly the claim that the exclusion of competent to give it. information concerning rates of customs duties from the category of information that 2 — OJ 1990 L 160, p. 1. is binding is incompatible with the

I - 2725

OPINION OF MR TESAURO — CASE C-371/90

(Portuguese) law applicable to information 6. Finally, the fourth question asks the provided by public administrative auth- Court to rule whether the only information orities, there is no need to labour the point to be regarded as binding information which that it is not within the purview of this precludes recovery of duties is information Court to give a ruling in that regard. containing an error that could not reasonably have been detected by the person liable.

I-2726

BEIRAFRIO v ALFANDEGA DO P O R T O

It follows that the fact that non-binding trader concerned and the degree of care information was supplied, which may well which he exercised.3 I would add that, as have led the person liable into error, may also held by the Court of Justice, 4 errors come within the scope of Article 5(2) where concerning determination of rates of the conditions laid down therein are customs duties can be detected by the satisfied. In particular, I would point out, person liable, where the rate in question is with respect to the requirement of an error expressly indicated in a Community regu- that could not reasonably have been lation, simply by consulting the Official discovered by the person liable, that, as the Journal of the European Communities: what Court has held, it is for the national court is involved is a normal duty of care, which to decide whether that condition has been should be discharged at least by economic satisfied, having regard to the nature of the agents who have some experience of their error, the professional experience of the trade.

In the light of the foregoing considerations, I am of the opinion that the Court should reply as follows to the questions submitted to it by the Tribunal Fiscal Aduaneiro do Porto:

1. The first indent of Article 5(1) of Regulation No 1697/79 must be interpreted as meaning that, in the absence of specific Community legislation at the material time, identification of the information that is to be regarded as binding for the purposes of non-recovery of amounts that are legally due, the auth- orities empowered to give such information and the procedure to be followed for obtaining it is a matter exclusively for the applicable national legislation.