C-47/95

1 — OJ 1990 L 370, p. 126. 2 — OJ 1991 L 324, p. 11. * Original language: English. 3 —OJ1985L302,p.23

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to Regulation (EEC) No 3835/90 and origi­ Regulation (EEC) No 3587/91 of 3 Decem­ nating in Bolivia, Colombia, Ecuador and ber 1991 extending into 1992 the application Peru [should not] be subject to more favour­ of Regulations (EEC) No 3831/90, (EEC) able treatment than the same products con­ No 3832/90, (EEC) No 3833/90 and (EEC) signed from Spain and from Portugal'. Thus, No 3835/90 applying generalized tariff pref­ Article 1 of that Regulation provides as fol­ erences for 1991 in respect of certain prod­ 4 lows: ucts originating in developing countries.

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OPINION OF MR FENNELLY — JOINED CASES C-47/95 TO C-50/95, C-60/95, C-81/95, C-92/95 AND C-148/95

Article 75(4) of the Act of Accession enables 6. Article 38(1) of the Treaty establishing the the Commission, acting, where necessary, in European Community (hereinafter 'the EC accordance with procedures laid down in Treaty') states: 'Regulations setting up the common organi­ 5 zation of agricultural markets', to suspend in whole or in part the customs duties on products imported from Spain into the Community of Ten.

5 — The procedure laid down in Article 38 of Council Regu­ lation (EEC) No 136/66 of 22 September 1966 on the estab­ lishment of a common organization of the market in oils and fats, OJ, English Special Edition 1965-1966 (I), p. 221, is cited as an example. This establishes a management commit­ '1 . No action may be taken by the compe­ tee procedure, by which the Council may, in certain circum­ stances, override the Commission's decision. The seventh tent authorities for recovery where the recital in the preamble to Regulation No 3416/91 recites the approval of the relevant management committees of the con­ amount of the import duties or export duties cessions to Spain and Portugal contained in the Regulation. 6 — These are the products which fall within the material scope of Council Regulation No 3796/81 of 29 December 1981 on the common organization of the market in fishery products; OJ 1981 L 379, p. 1. 7 — OJ 1979 L 197, p. 1.

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subsequently found to be lower than the 8. Council Regulation (EEC) No 1715/90 of amount legally due was calculated: 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature 8 provides for the binding effect of such tariff information and is thus of relevance to Article 5(1) of the — either on the basis of information given Regulation on recovery. The Regulation on by the competent authorities themselves recovery was replaced, with effect from which is binding on them, 1 January 1994, by Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs 9 Code, but was applicable during the period material to the present cases.

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OPINION OF MR FENNELLY — JOINED CASES C-47/95 TO C-50/95, C-60/95, C-81/95, C-92/95 AND C-148/95

by Article 164 of a royal decree of 13 Febru­ argued that the term 'agricultural products' ary 1896, whereby security was given for should be read in accordance with Article 38 the unclaimed duty and the authorities of the EC Treaty to include fishery products. retained the right to seek payment of the They argued, in the alternative, that the con­ duty at a later stage. However, the total and ditions set out in Article 5(1) and (2) of unconditional suspension of duty was con­ Regulation No 1697/79 were fulfilled in their firmed by a later circular, No 1014/UCTD cases, and that they should not be obliged to of 22 February 1992. pay the uncollected duty.

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mented by Regulation No 1715/90 of Analysis 20 June 1990, and Article 2 of implementing Regulation No 2164/91 of 23 July 1991, ini­ tiate action for the recovery of customs duties which were not collected at the time of importation because they were regarded as having been totally suspended as a result The first question of an erroneous interpretation of the Com­ munity legislation in force, but which subse­ quently proved to be due on the basis of a different interpretation of the same Commu­ nity legislation provided by the Commission of the EEC after consulting its Legal Service, where the person liable observed all the pro­ 14. The plaintiffs in the main proceedings visions laid down by the rules in force as far argued for a positive answer to the first as his customs declaration was concerned question and Italy and the Commission for a and it docs not appear that that person was negative answer. It is my view that this ques­ aware that the interpretation initially given tion should be answered in the negative, that to the Community legislation by the Italian is, that imports from Spain into the Commu­ authorities was erroneous?' nity of Ten of tuna in olive oil in 1991/92 did not benefit from the suspension of customs duties established by Article 1(1) of the Regulation.

contradicted by the Act of Accession, despite Regulation No 3835/90 — those derived the apparently mutually exclusive titles of from fisheries — by Article 173 of the Act of Chapters 3 and 4 of Part Four of the Act Accession. ('Agriculture' and 'Fisheries', respectively). Article 67(1) of the Act clearly employs the term 'agricultural products' in the same sense as does Article 38 of the EC Treaty, but establishes a separate regime in Chapter 3 of Part Four of the Act of Accession for a lim­ ited class of such products, that is, those other than fishery products. Agricultural products derived from fisheries are then 17. A counter-argument has been advanced made subject to a special regime in Chapter 4 by the plaintiffs in the main proceedings, 13 based on the third recital in the preamble to of Part Four of the Act. the Regulation, which mentions the general policy objective of avoiding any disadvan­ tage to Spain and Portugal relative to Bolivia, Colombia, Ecuador and Peru as regards imports into the Community of Ten of the agricultural products listed in the Annex to Regulation No 3835/90. I would caution, first of all, that the Court is insistent that customs legislation be interpreted very closely in accordance with its wording. Thus, the Court stated in Ethicon v Hauptzollamt 14 Itzehoe that 'the description of goods on which customs duties have been suspended must be interpreted according to objective 16. It is the difference between the regimes criteria derived from their wording and ... so established by the Act of Accession for they may not be applied contrary to their different types of agricultural products wording to other goods even if their proper­ which is decisive in these cases. Article 75(1) ties and application are no different from of the Act sets out the residual duties those covered by the suspension'. applicable to imports from Spain into the Community of Ten of agricultural products other than fishery products. These are the duties which are suspended by Article 1(1) of the Regulation. It is immaterial that sepa­ rate residual duties are imposed on other agricultural products listed in the Annex to

interpretation of Article 1(1) of the Regu­ category of agricultural products governed lation than that warranted by the text is pre­ by another. cluded by the limitation of the Commis­ sion's competence to agricultural products other than fishery products. The Regulation was adopted on the basis of Article 75(4) of the Act of Accession (and of Article 243(4), its equivalent concerning Portugal). The fact that a procedure specific to the regime estab­ lished in Chapter 3 of Part Four of the Act The second question was employed would, on its own, be suffi­ cient, in my view, to confirm the above tex­ tual analysis of Article 1(1) of the Regulation as being limited in scope to the residual duties established by that Chapter. However, this point is, I think, confirmed beyond doubt by the fact that the Commission pos­ sesses no equivalent competence to suspend 19. I will address in turn the applicability of duties under Chapter 4 of Part Four of the the first and second paragraphs of Article 5 Act. The suspension of duties on imports of of the Regulation on recovery. With the fish products from Spain into the Commu­ exception of Igino Mazzola, which sought to nity of Ten would have required, at the rely only on Article 5(2), the plaintiffs in the material time, an act of the Council voting main proceedings argued for the applicability by qualified majority on a proposal from the of both provisions. The Commission and Commission. An act of the Commission can­ Italy submitted that the first paragraph was not be construed so as to encroach upon the inapplicable, and that the Court should give competence of another institution, such as guidance in accordance with its case-law on the Council, simply in order to give fuller the application of the second paragraph, effect to a policy which, in so far as it might while Italy stressed some of the special fea­ relate to the products in question, the Com­ tures of these cases which might justify mission was not itself competent to pur­ 15 recovery. sue. Such an encroachment would be more than de minimis; it would entail, in the light of the general wording of Article 1(1) of the Regulation, applying provisions of one chap­ ter of the Act of Accession to the entire

'By thus making a distinction between the "information" referred to in the first indent of Article 5(1) and the "provisions of a gen­ eral nature" referred to in the second indent of Article 5(1), the Community legislature clearly indicated that the word "infor­ mation" did not include indications given in a document of a general nature addressed to unspecified persons but covered indications given by the competent authority to a par­ ticular trader in a specific case. 21. Even if the Court were to accept the argument of certain of the plaintiff compa­ nies that Article 5(1), first indent should be applicable in other circumstances, in which national law deems the competent authorities to be bound by customs information given 18 by them, this would not appear to permit the application of that provision in the cir­ cumstances of the present cases. Although the plaintiffs in the main proceedings and Italy disagreed in their observations about the binding quality of the circulars which stated that duties were suspended on fish products from Spain by virtue of the Regu­ lation, it appears that those circulars were of general application and were not directly addressed to individual traders. In Behn 19 Verpackungsbedarf, the Court observed that there was a material difference in the ter­ minology used in the first and second [The] principle of legal certainty may be relied on by a person liable to pay duty with respect to concrete information obtained 18 — This was the test employed in the application of Article 5(1) from an authority which he has consulted in of the Regulation on recovery before the coming into force of Regulation No 1715/90; see Beirafrio, cited in footnote order to deal with a specific case, but not by 16 above, paragraphs 16 and 17 of the Judgment. a person who relies on an administrative 19 — Case C-80/89 [1990] ECR I-2659, paragraphs 21 to 24 of the judgment. directive of a general nature which, like the

23. The second question referred by the Tri­ bunale di Genova presupposes that the trad­ ers in question had observed all the provi­ sions laid down by the rules in force as far as their customs declarations were concerned; 25. The question whether any error on the thus this condition need not detain us fur­ part of the customs authorities could reason­ ther. ably have been detected by the person liable, acting in good faith, requires the national court to have regard to 'the nature of the error, the professional experience of the trad­ ers concerned and the degree of care which 23 24. Italy argued that the complexity of the they exercised'. A number of observations legislation in question meant that this was may be made about the nature of the error in more a case of uncertainty about the scope question. The term 'agricultural products' of the customs rules in question than of normally includes fishery products in Com­ error as such on the part of the authorities. munity law. The statement of policy in the In this regard, it emphasized the initial use of third recital in the preamble to the Regu­ the suspended clearance procedure. If the lation is expressed, without qualification, to result of the operation of the procedure was extend to agricultural products listed in the that the affected traders were on notice that Annex to Regulation No 3835/90, which list includes products such as prepared and

20 — Paragraphs 22 and 24 of the judgment. 21 — Sec, for example, Case C-64/89 Deutsche Fernsprecher 23 — Sec, for example. Joined Cases C-153/94 and C-204/94 The [1990] ECR I 2535; Betrafino, cited in footnote 16 above; Queen v Commissioners of Customs and Excise, ex parte Case C-187/91 Belgian State v Belovo [1992] ECR I 4937. Faroe Seafood [1996] ECR I 2465, paragraph 99 of the 22 — Case 314/85 foto-Frost v Hauptzolaamt Lübeck-Ost [1987] judgment; Deutsche Fernsprecher, cited in footnote 21 ECR 4199; Casc 378/87 Top Hit Holzvertrieb v Commis- above, paragraph 24; Case C-250/91 Hewlett Packard sion [1989] ECR 1359. France [1993] ECR I-1819, paragraph 22.

preserved fish. Article 1(1) of the Regulation the Italian authorities, having first reserved is similarly phrased. It is only when one their position, confirmed the suspension of turns to Article 75 of the Act of Accession duties by the circular of February 1992 could that the limited effect of the Regulation have allayed any doubts entertained in good becomes clear. However, the fact that the faith by traders about the customs regime sliding scale of residual duties established in applicable to Spanish fish products. While Article 75(1) of the Act of Accession is the the precise legal effect of these circulars in same as that applied by Article 173 of the Italian law is a matter of dispute, the order Act could have suggested to the lay reader, for reference states that they were binding even if an experienced trader, that they estab­ on local customs offices. lished, in effect, a common regime, which was suspended by the Regulation. In my view, the legal provisions in question in the present cases are only marginally less com­ plex than those at issue in Weis v Hauptzol- lamt Würzburg, in which the Court stated that the error on the part of the authorities 24 27. It also appears from the pleadings that a was far from being detectable. number of other Member States raised their concerns with the Commission, which required the preparation of an interpretative note which was sent to the competent authorities of all the Member States. This further supports the view that the error com­ mitted by the Italian authorities was not rea­ 26. The complexity of the issue is further sonably detectable by the plaintiffs in the evidenced by circumstantial features of these 25 main proceedings. cases. The Tribunale di Genova spoke in its order for reference of the 'objective ambigu­ ity of the relevant legislation'; while I think the meaning of Article 1(1) of the Regulation is clear, I accept that it requires close exami­ nation and that the reference to 'agricultural products listed in the Annex to Regulation (EEC) No 3835/90' could have given rise to 28. In the light of the foregoing, I am of the misunderstandings about its material scope. opinion that the complexity of the legal pro­ Indeed, the plaintiffs in the main proceedings visions at issue and the factual circumstances mention a judgment of the Tribunal di of the present cases provide the national Genova, issued after the making of the order court with adequate grounds, contingent on for reference, which concluded that Spanish its ultimate findings of fact, to decide that fish products did indeed benefit from the the error of the authorities was not reason­ suspension of duty during the material ably detectable by experienced and careful period. This was also the provisional and, traders. later, definitive view of the Italian authorities over a period of about a year. The fact that 25 — See Hewlett Packard France, cited in footnote 23 above, paragraph 23 of the judgment. Although the Commission adopted a regulation, rather than an interpretative note, in order to resolve the divergences among the Member States 24 — Case C-292/91 [1993] ECR 12219, paragraph 17 of the regarding the customs classification at issue in that case, the judgment. two situations are, in my view, comparable.

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