C-187/91

OPINION OF MR GULMANN — CASE C-l 87/91

OPINION OF ADVOCATE GENERAL GULMANN delivered on 24 June 1992 *

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BELGIAN STATE v BELOVO

•warehouses. By rwo interim orders issued by imported from the German Democratic the President of the Tribunal de Première Republic prior to 30 June 1989 on the basis Instance de Bruxelles on 2 November and of an import Učence which was not covered 8 December 1989, Belovo was allowed to by the revocation issued in October 1989. remove the eggs from the warehouses and import them, subject only to payment of the levies specified on the advance fixing certifi- cates. It was pointed out at that time that the eggs would otherwise have perished and that 4. Belovo lodged a claim during the main the orders did not prejudge the issue as to proceedings for damages of BFR 5 million whether Belovo might be required at a sub- on the ground that the negligent conduct of sequent date to pay additional import levies. the Belgian authorities in issuing the advance fixing certificates resulted in the company's incurring losses by reason, inter alia, of expenditure on transport and storage in cus­ toms warehouses. O n 30 August 1990, the Belgian State initi- ated proceedings in the above case before the Tribunal de Première Instance de Neufchâ- teau for the back payment of approximately BFR 20 million. 5. The parties to the main proceedings agree that the issue of the advance fixing certifi­ cates was not authorized under the applica­ ble Community law. They also agree that the amount in respect of which back payment is 3. The request for back payment relates to requested has been correctly calculated. The import levies in respect of imports effected dispute between the parties therefore con­ on the basis of four of the nine import cerns only the issues whether the request for licences. 4 back payment is objectively justified and whether Belovo's claim for damages can be upheld.

7. Belovo contends that it acted in good faith in relying on the advance fixing certifi- cates which were issued and that the issue of (2) that if an importer of eggs, a product cov- those certificates conferred on it certain ered by a specific regulation, has bene- vested rights. The company also argues that fited, as a result of an error, from the the provisions in the regulation referred to advance fixing system, where the import : by the Belgian Government cannot in any contracts were entered into before the event preclude it from bringing a claim for withdrawal of the certificates and the damages against the Belgian State. importation effected after the withdrawal of the certificates pursuant to an urgent interim court order authorizing the 8. The Tribunal de Première Instance de importation of warehoused goods on Neufchâteau has referred the following ques- account of their perishability, is that tion to the Court for a preliminary ruling: trader required subsequendy to pay the amounts which would have been payable had there been no error in the issuing of ' D o Article 24 of Commission Regulation the certificates; (EEC) N o 3719/88 of 16 November 1988, which provides that if the issuing agency (of an import licence or certificate) considers a correction to be required it is to withdraw the extract or the licence or certificate as well (3) that the trader may benefit from the as any extracts previously issued and is to advance fixing system for current con- issue without delay either a corrected extract tracts and for orders placed, or on the or a corrected licence or certificate and the contrary that he must pay levy increases corrected extracts corresponding thereto, and arising after the advance fixing; Article 25 thereof, which provides that the titular holder must, at the request of the issu- ing agency, return to that agency the licence or certificate and/or the extracts therefrom, (4) that the trader may object to changes in mean: the amount payable on the incorrect cer- tificate or may hold the issuing agency liable; or 5 — I do not intend to attach any major importance in what fol- lows to this last argument, which the Belgian Government bases on the Court's judgment in Case 17/67 Neumann v Hauptzollamt Hof [1967] ECR 441. It is obvious that advance fixing can be of immense significance to traders when making their arrangements and that a failure to comply with advance fixing can have far-reaching economic conse- (5) that in the event of an error made by the quences for traders. In this context it would appear incorrect administration in drawing up an import to claim on the basis of an analysis of the nature of advance fixing and import levies that it can never be justified on licence or certificate, the issuing agency grounds of legal certainty to protect the rights of traders in cases where it is established that advance fixing certificates may not be claimed to have misled a have been wrongly issued. trader?'

9. This limitation, however, raises difficulties in two regards. 10. I wish in the following first of all to examine the scope of Articles 24 and 25 of In the first place, it is my view that the two the implementing regulation. provisions are hardly relevant to a resolution of the problems which the national court is required to address. 11. I then wish to consider the relevance of one of the arguments put forward by the Commission, according to which the Second, it is difficult in my opinion to over- advance fixing certificates must be treated as look the fact that a substantial part of the null and void. claim in the main proceedings concerns back payment in respect of an advance fixing cer- tificate used for the importation of eggs from the German Democratic Republic several 12. Finally, I wish to examine whether, as months prior to the revocation and which is submitted by Belovo in the course of its sub- consequently not covered by that revocation. missions to the Court, the main proceedings ought to be decided on the basis of Council Regulation (EEC) N o 1697/79 of 24 July 1979 on the post-clearance recovery of In their pleadings in the case, the parties do import duties or export duties which have not appear to have specifically addressed the not been required of the person liable for question whether that part of the claim for payment on goods entered for a customs back payment gives rise to special problems procedure involving the obligation to pay with regard to the application of Articles such duties (hereinafter 'the regulation on 24 and 25 of the implementing regulation, post-clearance recovery'). 6 which deal only with the revocation of licences. The parties addressed in particular the questions arising in connection with the importation of eggs from the USSR under 6 — OJ 1979 L 197, p. 1.

Article 2Í The provision contains nothing to support the view that revocation can occur without

1. The titular holder must, at the request of the issuing agency, return to that agency the 7 — This view is supported to some extent by the 17th recital in licence or certificate and/or the extracts the preamble to the regulation, according to which: ... in the interest of sound administration, licences or certifi­ therefrom. cates and extracts therefrom may not be amended after issue; ..., however, in cases of doubt relating to an error attributable to the issuing agency or to obvious inaccuracies and con­ cerning the items appearing on the Učence or certificate or extract, a procedure should be introduced whereby inaccu­ rate licences or certificates or extracts may be withdrawn and 2. ...'. corrected documents issued'.

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BELGIAN STATE v BELOVO

account being taken of the right to legal cer- which is of no concern to the Community tainty on the part of those affected by it. and must be resolved in accordance with Belgian law.

This is scarcely surprising. It is open to doubt whether a provision in a legal measure adopted by the Council or Commission can at all have the effect that the Belgian Govern- 19. It would in my view be incorrect to fol- ment claims for Article 24. An unconditional low the Commission's line of thought. right of revocation may well lead to results According to the case-law of the Court, only at variance with the principle of legal cer- measures which exhibit 'particularly serious tainty — including the protection of vested and manifest defects' may be deemed to be rights and legitimate expectations — which non-existent. 8 The Court has indicated that the Court has consistently held to be a gen- this result is necessary for evident reasons of erally applicable principle of Community legal certainty. law which must be complied with when gen- eral Community rules are adopted.

8 — See the judgment of the Court in Case 15/85 Consorzio 18. The Commission's view in the case is Cooperative d'Abruzzo v Commission [1987] ECR 1005, at paragraph 10 or which the Court stated that: straightforward. The advance fixing certifi- 'With regard to the arguments that the decision ... is non- existent, it is necessary to point out that under Community cates were quite clearly unauthorized under law, as under the national laws of the various Member States, the applicable Community law. They are for an administrative measure, even though it may be irregular, is presumed to be valid until it has been properly repealed or that reason null and void. Since they never withdrawn by the institution which adopted it. If a measure is deemed to be non-existent, the finding may be made, even existed, they cannot form the basis for either after the period for instituting proceedings has expired, that rights or obligations. Belovo must in any the measure has not produced any legal effects. For reasons of legal certainty which are evident, that classification must event pay the import levies applicable on the conscquendy be restricted under Community law, as under the national legal systems which provide for it, to measures dates on which the imports were effected. If which exhibit particularly serious and manifest defects.' Reference is also made to the Opinion delivered in that case, the conduct of the Belgian authorities in which Advocate General Mischo stressed the limited resulted in loss for Belovo, that is a matter scope of non-existence (see in particular p. 1019).

'It should be borne in mind that the princi- ple of the protection of legitimate expecta- tions forms part of Community law (see The first question must be whether Commu- judgment of 3 May 1978 in Case nity rules exist which lay down criteria for 112/77 Töpfer [1978] ECR 1019) and that all determining the circumstances under which national authorities responsible for applying such back payment may be requested and Community law are bound to observe the which take account of the need to ensure, on general principles of Community law (see the one hand, that traders pay import levies judgment of 27 September 1979 in Case which they owe and, on the other, that the 230/78 Eridania [1979] ECR 2749). Conse- payment demand does not constitute an quently, the national authority responsible unjustified infringement of the right to legal for applying the system of export refunds certainty of the party concerned. It stands to within the common organization of the agri- reason to examine whether such rules are to cultural markets is required to observe the be found in the regulation on post-clearance principle of the protection of the legitimate recovery referred to above, the purpose of expectations of economic operators.' u which is, inter alia, 'to limit, for reasons of legal certainty, the possibility for the national authorities to take legal action to recover Community duties after clearance'. 9 However, the Court held at paragraphs 20 and 21 of its judgment in Padovani, cited above, that

In the absence of applicable rules of Com- munity law, the question remains whether '... it cannot be considered that the restric- the Belgian authorities, in making the tions which Regulation N o 1697/79 places demand for post-clearance recovery, which on the post-clearance recovery by national must in principle be made pursuant to authorities of debts arising under Commu- national rules, are nevertheless required nity law may reflect a Community principle under Community law to comply with the of protection of legitimate expectations principle of legal certainty.

21. It can accordingly be held that the request for back payment in the present case 23. It is first of all necessary to examine must be determined in accordance with the whether that regulation is applicable in the regulation on post-clearance recovery, pro- present case. vided that that regulation is applicable, and that the request must, in the event that that regulation is inapplicable, be determined in principle pursuant to national law, but in This is disputed by the Belgian Government, such a way that certain general principles of at any rate so far as concerns the post- Community law are complied with. 13 clearance recovery of levies relating to imports effected after the revocation of the five advance fixing certificates.

certificates must be covered by the regula- 'In cases where national law, which is applicable as regards tion. The regulation covers any request for the detailed rules and condiûons for recovery, contained a principle protecting the legitimate expectations of traders, post-clearance recovery, irrespective of the the Court has taken the view that Community law does not preclude the application of such a principle of national law nature of the error which resulted in under- to prevent the recovery of such debts with regard to traders payment of import levies and irrespective of acting in good faith, provided, however, that the application of national law does not affect the scope and effectiveness the authority which made that error. 14 of Community law and is not discriminatory in relation to procedures for dealing with similar but purely national dis-

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OPINION OF MR GULMANN — CASE C-187/91

of imports effected after the revocation of form practice throughout the Community in the certificates is also covered. The Belgian cases involving post-clearance recovery, a sit- Government rightly submitted that the uation which is also of benefit to traders. authorities had requested payment, in respect of the imports, of the import levies applica- ble on the dates of importation and that the need for post-clearance recovery arose solely 24. It is now necessary to examine whether on account of the two court orders referred Belovo is correct in its contention that to above, which made it possible to effect post-clearance recovery is excluded under importation against payment of import levies Article 5. fixed in advance.

Article 5 provides as follows:

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BELGIAN STATE v BELOVO

25. It is in my opinion beyond doubt that The central problem in the present case is Belovo is incorrect in its contention that the whether Belovo has satisfied the second of present case is covered by Article 5(1), as the those three conditions. If that condition has company did not receive either a proper been satisfied, there would be no obvious prior decision from the Belgian authorities difficulty in assuming that the other two or any other form of 'information ... which is conditions have been satisfied as well. binding'. 15

26. The question to be addressed is therefore The Court ruled as follows in paragraphs whether the conditions set out in Article 5(2) 18 to 23 of its judgment in Case have been satisfied. C-64/89 Hauptzoüamt Gießen v Deutsche Fernsprecher: 17

The Court has consistently held that post- clearance recovery cannot be made if all the requirements set out in Article 5(2) have '... it is necessary to look specifically at all been fulfilled — see, inter alia, the Court's the circumstances of the case in order to judgment in Case 314/85 Foto-Frost v determine whether or not the error was Hauptzoüamt Lübeck-Ost. 16 detectable by the trader in question.

Article 5(2) sets out the following three con- In that regard, account must be taken in par- ditions: ticular of the precise nature of the error, the professional experience of, and the care taken by, the trader. (i) First, the failure to collect the levies must be the result of an error made by the competent authorities themselves; As regards the precise nature of the error, the question to be determined each time is (ii) Second, the error must be one which whether the rules concerned are complex or could not reasonably have been detected simple enough for an examination of the by the person liable, the latter having facts to make an error easily detectable. ... for his part acted in good faith;

It was Belovo which, towards the end of It is for the national court to assess whether, November 1988, requested the advance fix- having regard to the circumstances of the ing of the import levies. It strikes me as sur- case before it, those criteria are satisfied.' prising that the implementing regulation, adopted a short time previously, could have led the company reasonably to assume that there had been such a fundamental change in the legal position that import levies could in Those criteria are also of relevance to the future be fixed in advance. present case and can in principle be applied to it without any major problems.

27. Belovo claims that it acted in good faith The new regulation had a relatively limited and that it could not reasonably have been objective. This becomes apparent from the aware that the certificates had been unlaw- first recital in its preamble, which mentions fully issued. that the corresponding regulation previously applicable had

It points out that the rules on the advance fixing of import levies are not easy to under- stand and that the adoption of the new implementing regulation in November 'been amended many times, in some cases 1988 caused it to believe that, as a departure substantially ..., [and that] therefore, in the from previous practice, import levies could interests of clarity and administrative effi- subsequently be fixed in advance in the same ciency it is advisable to consolidate the rules

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BELGIAN STATE v BELOVO

in question in a single text, at the same time wide-ranging experience of the sector going marking certain amendments which experi­ back many years, that it is a major undertak­ ence has shown to be desirable'. ing specializing in the importation of eggs from non-member countries and that it ought for that reason to be presumed to be well aware of the fundamental principles Belovo has failed to indicate which of the which apply within the organization of the 'amendments' made may have brought about market in eggs. the change in the legal position relevant to the present case.

Moreover, there is a substantive requirement that Belovo should itself have exercised care. It is undisputed that the company has a Moreover, it is difficult, on the facts of this case, to see how other rules or principles of 18 — Sec Regulation (EEC) No 2771/75 of the Council of Community law can be of relevance to a 29 Ocrober 1975 (OJ 1975 L 282, p. 49), Articles 3 and 8 of which contain provisions on fixeď and variable import lev­ decision on Belovo's claim for damages. That ies respectively. As already pointed out, it is clear that the claim must be decided on the basis of regulation does not make it possible for these to be fixed in advance. national rules on damages.

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OPINION OF MR GULMANN — CASE C-187/91

Conclusion

31. I accordingly propose that the Court reply as follows to the question submitted by the Tribunal de Première Instance de Neufchâteau:

(1) Articles 24 and 25 of Commission Regulation (EEC) N o 3719/88 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products do not pre- clude account from being taken, in a case concerning post-clearance recovery of import levies, of the defendant's submissions regarding vested rights and do not preclude the defendant from succeeding in its claim for damages.