C-250/91

O P I N I O N O F MR TESAURO — CASE C-250/91

OPINION OF ADVOCATE GENERAL TESAURO delivered on 22 October 1992 *

Mr President, Finance Office, HP-France declared the key- Members of the Court, boards in question for release for free circu- lation under tariff heading 85.55C, covering 'spare parts for computers'. Since goods clas- sified under that tariff heading qualified for a 1. The preliminary ruling sought by the Tri- suspension of customs duties, 3 HP-France bunal d'Instance of the Seventh Arrondisse- was exempted from duty on them. ment, Paris, relates to the interpretation of Article 5(2) 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 Hable for payment on goods entered Following a subsequent verification, the for a customs procedure involving the obli- French customs authorities informed gation to pay such duties; 1 and, in the alter- HP-France that the keyboards in question native, Article 13 of Council Regulation should have been classified under heading (EEC) N o 1430/79 of 2 July 1979 on the 84.53B, covering 'processing units for elec- repayment or remission of import or export tronic computers', and therefore that there duties. 2 would be post-clearance recovery of the duties due for 1986. 4

In the present case, the question submitted must be construed as meaning that the 3. The national court has asked this Court to national court wishes to determine whether give a preliminary ruling as to whether, in the conditions laid down in Article 5(2) of view of the circumstances invoked by the Regulation N o 1697/79 or, in the alternative, plaintiff in the main proceedings, namely the those in Article 13 of Regulation N o existence of a binding notice issued by the 1430/79, are satisfied where a company has Munich Revenue Office classifying the goods relied, for the purposes of tariff classification, in question under heading 84.55C and the on incorrect (binding) information provided absence of any objection from the French to its fellow subsidiary by the competent customs authorities regarding that classifica- customs authority in another Member State tion (notwithstanding the fact that each and the customs authorities responsible for import declaration expressly referred to the collection have made no objection regarding heading declared, next to the correct com- that tariff classification. mercial description of the goods), the appli- cant is entitled to a waiver of post-clearance recovery of the duty at issue pursuant to Article 5(2) of Regulation N o 1697/79 or, in the alternative, remission of import duties pursuant to Article 13 of Regulation N o 4. That said, it should be noted as a prelim- 1430/79. inary point that Article 5(2) of Regulation N o 1697/79 makes a decision by the compe- tent authorities not to effect post-clearance recovery of the duties payable subject to the It should be observed at the outset that, simultaneous fulfilment of three conditions: when called on to give a ruling under Article namely, the 'duties ... were not collected as a 177, the Court has no jurisdiction to apply a result of an error made by the competent Community provision to a specific case but authorities themselves which could not rea- must confine itself to providing the national sonably have been detected by the person court, on the basis of the information before liable, the latter for his part having acted in it, with the requisite interpretative guidance good faith and observed all the provisions to allow it to decide the case. 5 In other laid down by the rules in force as far words, when faced with questions that go as his customs declaration is concerned'. beyond its jurisdiction under Article 177, the I would also point out that the Court has

The first condition laid down by that provi- sion, therefore, is that the non-collection of the duties must be attributable to an error made by the competent authorities them- selves. Accordingly, it is necessary to deter- The Court thus recognized that account may mine whether the phrase 'error made by the be taken of an error made by customs competent authorities' extends to: (a) an authorities other than those responsible for error not attributable to the customs author- effecting recovery. It is true, as is apparent ities responsible for collection of the duty from the judgment cited above, that such an but to those in another Member State which error must be relevant to the collection of provided incorrect (binding) information to the duty and therefore be such as to cause a fellow subsidiary of the company con- the trader in question to entertain legitimate cerned; (b) the fact that the authorities com- expectations. The Commission maintains petent to effect recovery raised no objection that that condition is not satisfied in the regarding classification of the keyboards, present case since the information in ques- even though a comparison between the head- tion was given not to HP-France but to its ing declared and the explicit commercial German fellow subsidiary, and that only the description of the goods in question would latter is therefore entitled to rely on it. have disclosed a contradiction.

Before answering that question, I think it is 6. I shall therefore now consider whether appropriate to refer to Council Regulation the fact that those authorities raised no (EEC) N o 1715/90 of 20 June 1990 on the objection regarding the customs heading information provided by the customs indicated by the trader in question in rela- authorities of the Member States concerning tion to the goods concerned may be regarded the classification of goods in the customs as an error made by the competent authori- nomenclature, 9 a harmonizing regulation ties. As is apparent from the judgment in which provides, inter alia, that the Commis- Foto-Frost, 10 whilst it is true that, where sion is to determine, by means of an imple- duty has been calculated on the basis of menting regulation, that a binding notice unchecked particulars given in the customs issued in one Member State has the same declaration, the declaration may be subjected legal significance in all the other States: in to subsequent verification and the amount of other words, it is also binding on the compe- duty calculated rectified, it is also true that, if tent authorities in all the other Member the post-clearance check does not disclose States. That legislative development can be any information additional to that provided accounted for by the concern to avoid dis- in the customs declaration, the failure to col- criminatory treatment within the Commu- lect the duties is in principle attributable to nity and is clearly based on the premise that an error by the customs authorities. In other the classification of goods should not vary words, for there to be an error on the part of from one Member State to another. Against the competent authorities which is relevant that background, I consider that, once the for the purposes of non-recovery, it is suffi- Commission has adopted such an imple- cient if those authorities, despite the size and menting regulation, it will not be reasonable number of the transactions carried out by to deny the relevance of an error made by the trader in question, fail to challenge the the competent customs authorities in one classification adopted by that trader, having Member State vis-à-vis economic agents regard to the information provided in the established in other Member States, who will customs declaration. then be able to rely on it — if the other con- ditions laid down in Article 5(2) are fulfilled — to ensure that duties are not recovered from them.

declared'. 12 Now, it is common ground that uniform application of the combined nomen- in all the customs declarations presented by clature, to adopt an ad hoc regulation, 14 HP-France the word 'keyboards' was which finally 'prescribed' the customs head- entered beside the declared customs heading . ing in which to classify the goods in ques- and the imports in question were made over tion, constitutes significant evidence, first, of a fairly long period, without the customs the complexity of the problem in hand 15 authorities raising the slightest objection and, secondly, the lack of negligence on the regarding the tariff heading indicated. It fol- part of the trader in question. 16 lows that the failure to require duties which, moreover, at the material time did not in fact have to be collected, is certainly attributable to an error on the part of the competent authorities themselves. As regards the business experience of the trader concerned, the Court has held that it must be established whether the person con- 7. Let us consider the second condition laid cerned is a professional trader and 'particu- down in Article 5(2) of Regulation N o larly whether he had in the past carried out 1697/79, namely that the error concerned similar transactions on which customs duties w must be one which could not reasonably had been correctly calculated'. It is cer- have been detected by the person liable. In tainly true that HP-France is a professional that connection, it should be borne in mind trader, so much so that, as pointed out by the as a preliminary point that the Court has Commission, it has had recourse to the pro- consistently held that it is incumbent on the cedure for combined declarations; however, national court to ascertain whether that con- as is apparent from the documents before the dition is fulfilled, having regard to the nature Court, until the objection was raised by the of the error, the experience of the trader con- French authorities, it had always imported 13 the goods in question under the same tariff cerned and the diligence shown by him. However, the Court has laid down a number heading, namely 84.55C. of criteria to be followed by the national court in so doing.

9. The conclusion which I have reached makes it unnecessary to consider whether, in a case like this one, the conditions laid down Hewlett Packard France correctly indicated in Article 13(1) of Regulation No the name of the goods in question, but not 1430/79 for the remission of duty are satis- the tariff classification, since it relied on fied. However, for the sake of completeness binding information supplied by the compe- and just in case the Court does not follow tent German customs authorities to its fel- the line which I advocate, I think I should low subsidiary. Moreover, the declared cus- consider the matter. But not before empha- toms heading appeared clearly and explicitly sizing that an application for the remission next to the description of the goods in ques- of duties entered in the account but not paid tion, so that the customs authorities could under Article 13 of Regulation No certainly, and ought to, have established 1430/79 can, in my opinion, be lodged at the immediately and unambiguously that the same time as a request for non-recovery declared tariff heading was inappropriate. under Article 5(2) of Regulation N o 1697/79. The two regulations just referred to do not in fact operate in the alternative but cover two different situations. There is thus no rea- son why a trader should not, by applications lodged on the same date, ask whether, in the As regards, more particularly, the require- event of non-recovery not being granted, ment of good faith, I do not think that it can there might be grounds for remission of the reasonably be called in question in a case duties (which ought otherwise to be recov- where, as here, the trader in question would ered). not, at the material time, have paid any duty even if it had classified the goods in question under the tariff heading subsequently found to be correct. N o r do I feel that I can share the Commission's view that, in order to sat- isfy the condition at issue, Hewlett Packard France should in any event have sought a Article 13(1) of Regulation N o 1430/79 pro- vides that import duties may be repaid or 18 — See Top Hit, cited above, paragraphs 22-26. remitted in special situations 'which result 19 — Mecanarte, cited above, paragraph 29. from circumstances in which no deception or

However, that situation cannot be regarded 10. In that connection, I would observe first as constituting a 'special situation', unless that the present case is not one of the 'typi- one calls in question the validity of the entire cal' cases listed in Article 4 of Commission system, as expressly provided for by the Regulation N o 3799/86 of 12 December abovementioned Council Regulation N o 1986, 20 which make available the repayment 3599/85 which, in fact, allows the Commis- or remission of import duties under Article sion to adopt — even after the end of the rel- 13 of Regulation N o 1430/79. It is clear, evant period — measures to bring to an end therefore, that the procedure extends to case- allocations to preferential tariff quotas; and by-case evaluation of other circumstances the Commission exercised that power by which may arise; however, the overall logic adopting Regulation N o 1236/87. of the system seems to me to be such as to exclude any reliance on Article 13 in order to evade decisions to recover duties which were lawfully due but were not collected, except — specifically — in cases where those duties, In short, the fact that the economic agent in if actually paid when due, would then have question would not have paid any duty if, at met the conditions for repayment. And it is the material time, it had declared the goods undisputed that if Hewlett Packard France in question under what was later found to be the correct customs heading is not sufficient to constitute a special situation within 20 — OJ 1986 L 352, p. 19. the meaning of Article 13(1) of Regulation

(1) T h e first s u b p a r a g r a p h of Article 5(2) of C o u n c i l R e g u l a t i o n N o 1697/79 is t o b e i n t e r p r e t e d as m e a n i n g that n o e r r o r is c o m m i t t e d b y t h e c o m p e t e n t authorities w h e r e b i n d i n g i n f o r m a t i o n is p r o v i d e d b y t h e c u s t o m s a u t h o r i t i e s of a n o t h e r M e m b e r State, w h i c h are n o t c o m p e t e n t t o collect d u t y f r o m a n e c o n o m i c agent o t h e r t h a n t h e p e r s o n liable; however, an e r r o r b y t h e a u t h o r - ities responsible for collection, w i t h i n t h e m e a n i n g of t h a t p r o v i s i o n , arises w h e r e s u c h authorities, n o t w i t h s t a n d i n g the n u m b e r a n d v o l u m e of t h e i m p o r t s m a d e b y the p e r s o n liable, have raised n o o b j e c t i o n r e g a r d i n g t h e clas- sification of t h e g o o d s in q u e s t i o n w h e n c o m p a r i s o n of t h e h e a d i n g declared w i t h the explicit c o m m e r c i a l d e s c r i p t i o n of the g o o d s s h o u l d h a v e m a d e it possible t o establish w h e t h e r o r n o t t h e y c o r r e s p o n d e d .

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OPINION OF MR TESAURO— CASE C-250/91

(2) The first subparagraph of Article 5(2) of Council Regulation N o 1697/79 must be interpreted as meaning that it is incumbent on the national court to estab- lish whether the error could reasonably have been detected by the person lia- ble, having regard to the nature of the error, the business experience of the trader concerned and the diligence displayed by him. The person liable must have provided the customs authorities with all the necessary information pro- vided for by the Community legislation on customs declarations and any national implementing legislation or supplementary provisions; for the pur- poses of such compliance, it is sufficient for that information, although incor- rect, to have been supplied in good faith.