C-446/93

SEIM v SUBDIRECTOR-GER.AL DAS ALFÂNDEGAS

J U D G M E N T O F T H E C O U R T (Third Chamber) 18 January 1996"

In Case C-446/93,

REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunal Tributário de Segunda Instância (Portugal) for a preliminary ruling in the proceed- ings pending before that court between

SEIM — Sociedade de Exportação e Importação de Materiais Ld. a

and

T H E COURT (Third Chamber),

composed of: J.-R Puissochet, President of the Chamber, J. C. Moitinho de Almeida (Rapporteur) and C. Gulmann, Judges,

Advocate General: G. Cosmas, Registrar: R. Grass,

after considering the written observations submitted on behalf of:

— the Portuguese Government, by Luís Fernandes, Director of the Legal Service of the Directorate-General for the European Communities of the Ministry of Foreign Affairs, and Maria Luisa Duarte, Legal Adviser in the same directorate, acting as Agents,

— the Commission of the European Communities, by Maria Blanca Rodriguez Galindo and Francisco de Sousa Fialho, of its Legal Service, acting as Agents,

SEIM v SUBDIRECrOR-GERAL DAS ALFÂNDEGAS

referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a number of questions on the interpretation of Council Regulation (EEC) N o 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1), as amended by Council Regulation (EEC) N o 3069/86 of 7 October 1986 (OJ 1986 L 286, p. 1), Commission Regulation (EEC) N o 1574/80 of 20 June 1980 laying down provisions for the implementation of Articles 16 and 17 of Council Regulation (EEC) N o 1430/79 (OJ 1980 L 161, p. 3) and Commission Regulation (EEC) N o 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regu- lation (EEC) N o 1430/79 (OJ 1986 L 352, p. 19) and on the validity of Article 4(2)(c) of Regulation N o 3799/86.

2 The questions were raised in proceedings between the company SEIM — Sociedade de Exportação e Importação de Materiais Ld. a (hereinafter 'SEIM') and the Portuguese customs authorities concerning payment of customs duties on the importation of goods.

3 SEIM, the plaintiff in the main proceedings, bought from an undertaking estab- lished in Germany certain goods on which customs duties were not charged upon their importation into Portugal in 1986 since the Federal Republic of Germany was stated to be the place of origin of the goods in the EUR 1 certificates of origin.

4 However, those certificates were later cancelled by the German customs authorities on the ground that they had been incorrectly issued because the goods did not have the origin stated therein. The Portuguese customs authorities then began pro- ceedings to effect post-clearance recovery of the customs duties in question, amounting to ESC 7 660 587.

8 In support of those applications SEIM claimed in particular that there had been an error on the part of the German customs authorities which could not have been detected by it and that it had acted in good faith throughout, so that the conditions for refraining from taking post-clearance recovery action, laid down in Article 5(2) of Regulation N o 1697/79, were fulfilled.

9 O n 28 February 1989 the Directorate-General for Customs notified SEIM that its application had been rejected. In that notification, the Portuguese authorities main- tained, in substance, that Article 5(2) of Regulation N o 1697/79 related to errors committed by the competent authorities of the Member State in determining an amount lower than that which was payable, and not to errors committed by the authorities of the State of exportation which, as in this case, incorrectly issued E U R 1 movement certificates.

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io SEIM then brought proceedings before the Tribunal Tributário de Segunda Instân- cia for annulment of that decision which is the subject-matter of the main proceed- ings. SEIM advances three grounds for annulment. First, the conditions laid down in Article 5(2) of Regulation N o 1697/79 for the competent authorities to refrain from effecting post-clearance recovery are fulfilled. Secondly, in view of the amount demanded, which exceeds E C U 2 000, the final decision must be taken by the Commission so that the Directorate-General for Customs should submit the case to that institution. Thirdly, the same result could be achieved on the basis of Article 13(1) of Regulation N o 1430/79.

' 1 . Import duties may be repaid or remitted in special situations other than those referred to in Sections A to D , which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

T h e situations in which the first subparagraph may be applied, and the detailed procedural arrangements to be followed for this purpose, shall be determined in accordance with the procedure laid down in Article 25. Repayment or remission may be made subject to special conditions.

2. Import duties shall be repaid or remitted for the reasons set out in paragraph 1 u p o n submission of an application to the appropriate customs office within 12 months from the date on which those duties were entered in the accounts by the authority responsible for their collection.

However, the competent authorities may permit that period to be exceeded in exceptional cases where there is good reason for doing so.'

is Article 4 of Regulation N o 3799/86, cited above, which lays down provisions for the implementation of, in particular, Article 13 of Regulation N o 1430/79, lists 'without prejudice to other situations to be considered case by case' 'special situ- ations' within the meaning of the latter provision, authorizing repayment or remis- sion of import duties (paragraph 1) and the situations which are not by themselves to be such special situations (paragraph 2).

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i9 Finally, Article 7(1) of Regulation N o 1574/80, cited above, which lays down provisions for the implementation of Articles 16 and 17 of Regulation

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N o 1430/79 relating to the procedure to be followed for making an application for repayment or remission, provides:

'When the decision-making authority possesses all the necessary information, it shall give its decision on the application at the earliest opportunity and notify the applicant in writing of that decision'.

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made to the same administrative authority for reconsideration of its decision, is applicable to remission of import duties. If it is, the plaintiff in the main proceed- ings simply had to set out the factual arguments in favour of granting remission, whilst the national authority had to assess those facts in the manner most consis- tent with customs law, that is to say that in this case it had to treat the points raised as an application under Article 13 of Regulation N o 1430/79.

23 Finally, the national court has doubts about the validity of Article 4(2)(c) of Regu- lation N o 3799/86 in so far as it restricts the cases in which, pursuant to. Article 13(1) of Regulation N o 1430/79, remission may be granted beyond what is neces- sary in order to safeguard other rights or interests protected by the Community.

24 Because of those d o u b t s t h e Tribunal T r i b u t á r i o de Segunda Instância d e c i d e d to stay proceedings until t h e C o u r t of Justice has given a p r e l i m i n a r y ruling o n the following questions:

(d) Is Article 4(2)(c) of Regulation N o 3799/86 of 12 December 1986 invalid in that it restricts special cases of remission of payment beyond what is necessary in order to safeguard other Community interests, thereby infringing Article 13(1) of Regulation N o 1430/79?'

Admissibility of the reference for a preliminary ruling

25 According to the Portuguese Government, the reference for a preliminary ruling is inadmissible. In holding that the contested decision constitutes a refusal to grant remission of import duties, the Tribunal Tributário de Segunda Instância misread SEIM's application and the contested decision. That court thus confused non-post- clearance recovery of import duties and remission of import duties, which are two different things, subject to different sets of rules.

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26 According to the Portuguese Government, the contested decision is in fact a decision declining an application for non-post-clearance recovery of the import duties in question and not an application for remission of those duties. This explains why the decision only took account of the corresponding legal basis, namely Regulation N o 1697/79. Owing to that error of categorization, the ques- tions referred for a preliminary ruling bear no relation to the dispute which the national court is called upon to resolve.

Substance

The first question

n Both the Portuguese Government and the Commission consider that the issue of classification raised by the first question is a matter for domestic law only and that it therefore falls outside the jurisdiction of this Court when asked to give a pre- liminary ruling.

32 In that regard, it must be observed that the Court has ruled (see, in particular, its judgment in Case 179/84 Bozetti v Invernizzi [1985] ECR 2301, at paragraph 17) that it is for the legal system of each Member State to determine which court has jurisdiction to hear disputes involving individual rights derived from Community law, but at the same time the Member States are responsible for ensuring that those rights are effectively protected in each case. Subject to that reservation, it is not for the Court to intervene in order to resolve questions of jurisdiction to which the classification of certain legal situations based on Community law may give rise in the national judicial system.

33 However, in that same judgment the Court also stated (at paragraph 18) that it has power to explain to the national court points of Community law which may help to solve the problem of jurisdiction with which that court is faced.

34 It m u s t be p o i n t e d o u t in this regard that, b y virtue of Article 8(1 )(a) of C o u n c i l Regulation (EEC) N o 2144/87 of 13 July 1987 on the customs debt (OJ 1987 L 201, p. 15), applicable to the case before the national court, a 'customs debt' is extinguished in particular 'by payment of the amount of the import or export duties payable on the goods in question or, where appropriate, by remission of that amount pursuant to the Community provisions in force'. The decision on an

37 That interpretation is borne out by the first paragraph of Article 13(2) of Regu- lation N o 1430/79, which, as amended by Regulation N o 3069/86, applicable to the case before the national court, makes repayment or remission of import duties subject, for the reasons indicated in paragraph (1) of that provision, only to sub- mission of the relevant application to the customs office concerned 'within 12 months from the date on which those duties were entered in the accounts by the authority responsible for their collection'.

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38 It cannot be objected in this regard that the second recital in the preamble to Regulation N o 1430/79 refers to the situation, governed by Article 2 of the regu- lation, in which the amount of import duties which was paid or whose 'payment has been deferred' exceeds the amount lawfully due. As the Commission has indeed rightly observed, that expression refers only to a situation envisaged by Council Directive 78/453/EEC of 22 May 1978 on the harmonization of provi- sions laid down b y law, regulation or administrative action concerning deferred payment of import duties or export duties (OJ 1978 L 146, p. 19), which does not prevent the Community legislature from establishing an autonomous system gov- erning the remission and repayment of import duties or export duties.

39 The answer to the second question must therefore be that the words 'duties ... which have not yet been paid' appearing in Article l(2)(d) of Regulation N o 1430/79 do not refer only to duties whose payment has been deferred.

43 Article 4(1) of Regulation N o 3799/86 accordingly defines special situations result- ing from circumstances in which no deception or obvious negligence may be attributed to the person concerned, which give rise to repayment or the remission sought whilst Article 4(2) of that regulation defines the situations which are not by themselves to constitute a sufficient reason for the competent authorities of the Member States to grant remission or repayment.

44 As regards, in particular, the type of situation referred to in Article 4(2)(c), the Court held, in its judgment in Joined Cases 98/83 and 230/83 Van Gend & Loos v Commission [1984] ECR 3763, at paragraph 13, that verifications carried out after importation would be largely deprived of their usefulness if the use of false certif- icates could, of itself, justify granting a remission.

45 As the Commission rightly points out, the opposite result could discourage traders from adopting an inquiring attitude and make the public purse bear a risk which falls mainly on traders.

46 However, where an application based on the trader's ignorance of the fact that documents submitted were forged, falsified or not valid is supported by evidence of a special situation resulting from circumstances in which no deception or obvi- ous negligence may be attributed to him, that application is to be submitted to the Commission, in accordance with Article 6 of Regulation N o 3799/86, in order for it to take a decision.

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SEIM v SUBDIRECTOR-GERAL DAS ALFÂNDEGAS

si That argument cannot be upheld.

52 Although the grant of remission under Article 13 necessitates the submission of an application by the person concerned to the competent authority and Regulation N o 1430/79 provides that the competent authorities may grant remission only in the cases provided for in Article 2, those provisions do not prevent those author- ities from checking in all cases that the circumstances relied on do not fall within any of the cases referred to by the rules in question.

53 It is t r u e that Article 5(1) and Article 6(1) of R e g u l a t i o n N o 3 7 9 9 / 8 6 , o n the c o m - p e t e n c e of the national authorities and the C o m m i s s i o n to assess applications for remission or r e p a y m e n t , refer, respectively, t o 'an application u n d e r Article 13(2) of t h e basic R e g u l a t i o n ' a n d t o 'an application for r e p a y m e n t o r remission u n d e r [the same article] ...'. H o w e v e r , those provisions c a n n o t be i n t e r p r e t e d as p r e c l u d - ing national authorities from examining w h e t h e r t h e factual reasons set o u t in a n application for remission c o r r e s p o n d t o a situation covered b y Article 13(1) of that regulation and, w h e r e a p p r o p r i a t e , from granting remission of the i m p o r t duties in question.

54 The answer to be given to the third question must therefore be that where, in an application actually seeking remission of import duties, the person concerned relies on facts capable of constituting a special situation within the meaning of Article 13(1) of Regulation N o 1430/79, without, however, expressly mentioning that pro- vision, that omission does not prevent the national customs authority from con- sidering the application with reference to that provision.

in answer to the questions submitted t o it by the Tribunal Tributário de Segunda Instância, by order of 19 January 1993, hereby rules:

1. The decision of the national customs authority, adopted pursuant to Article 7(1) of Commission Regulation (EEC) N o 1574/80 of 20 June 1980 laying down provisions for the implementation of Articles 16 and 17 of Council Regulation (EEC) N ò 1430/79, relates directly to the obligation of a natural or legal person to pay the amount of the import duties applicable under the current provisions to the goods subject to such duties. It is for the national court to draw the relevant conclusions from that finding when determining whether it has jurisdiction in the matter.

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2. The words 'duties ... which have not yet been paid' appearing in Article l(2)(d) of Council Regulation (EEC) N o 1430/79 of 2 July 1979 on the repay- ment or remission of import or export duties do not refer only to duties whose payment has been deferred.

3. Examination of the fourth question has disclosed no factor of such a kind as to call in question the validity of Article 4(2)(c) of Commission Regulation (EEC) N o 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) N o 1430/79.