C-47/95

Ghezzi Alimentari Srl (C-49/95),

Fredo Srl (C-50/95),

Cateringros Srl (C-60/95),

Intercod Srl (C-81/95),

Nuova Castelli SpA (C-92/95),

Igino Mazzola SpA (C-148/95)

THE COURT (Fifth Chamber),

composed of: J. C. Moitinho de Almeida, President of the Chamber, L. Sevón, D. A. O . Edward (Rapporteur), P. Jann and M. Wathelet, Judges,

Advocate General: N . Fennelly, Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

— Olasagasti & C. Sri, by Alessandro Ghibellini, of the Genoa Bar,

— Igino Mazzola SpA, by Gianfranco Barabino, of the Genoa Bar, I - 6595

gives the following

Judgment

1 By orders of 26 January, 16, 17 and 23 February, 9 and 30 March 1995, received at the Court Registry between 23 February and 12 May 1995, the Tribunale di Genova (District Court, Genoa) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Article 1(1) of Commission Regulation (EEC) No 3416/91 of 25 November 1991 on certain residual duties applicable in 1991 in the framework of the successive reduction in accordance with the Act of Accession of Spain and Portugal (OJ 1991 L 324, p. 11) and of Article 5 of Council Regulation (EEC) No 1679/79 of 24 July 1979 on the post-clearance recovery of import duties which have not been required of the person liable for payment on goods entered for a customs procedure involv­ ing the obligation to pay such duties (OJ 1979 L 197, p. 1).

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OLASAGASTI AND OTHERS v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

2 Those questions were raised in proceedings brought by Olasagasti & C. Srl (C-47/95), Comarcon SNC (C-48/95), Ghezzi Alimentari Srl (C-49/95), Fredo Srl (C-50/95), Cateringros Sri (C-60/95), Intercod Srl (C-81/95), Nuova Castelli SpA (C-92/95) and Igino Mazzola SpA (C-148/95) against the Italian authorities con­ cerning the post-clearance recovery of customs duties on imports of preserved tuna in olive oil from Spain between 30 November 1991 and 31 December 1992.

6 In implementation of Article 75(4) of the Act of Accession, Article 1 of Regulation No 3416/91 provides:

'1 . The residual duties applicable to imports of the agricultural products listed in the Annex to Regulation (EEC) No 3835/90 into the Community of Ten in accordance with Articles 75(1) and 243(1) of the Act of Accession are hereby totally suspended until 31 December 1991.

The suspension provided for in the first subparagraph shall not apply to the prod­ ucts in Chapter 15 of the Combined Nomenclature referred to in Article 94(1) of the Act of Accession.

2. Should the Common Customs Tariff duties on products originating in Bolivia, Colombia, Ecuador and Peru and listed in the Annex to Regulation (EEC) No 3835/90 be suspended again, the provisions of paragraph 1 shall apply mutatis mutandis during the duration of the suspension.'

7 According to the third recital in its preamble, Regulation No 3416/91 was intended to ensure that agricultural products imported from Spain and Portugal were not treated less favourably than the same products covered by Council Regu­ lation (EEC) No 3835/90 of 20 December 1990 amending Regulations (EEC) No 3831/90, (EEC) No 3832/90 and (EEC) No 3833/90 in respect of the system of generalized tariff preferences applied to certain products originating in Bolivia, Colombia, Ecuador and Peru (OJ 1990 L 370, p. 126). Under Article 3 of that regulation, Common Customs Tariff duties are to be totally suspended for prod­ ucts listed in the Annex to it, originating in the four countries in question. Those products include prepared and preserved fish (heading 16.04 of the Combined Nomenclature).

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JUDGMENT OF 12. 12. 1996 —JOINED CASES C-47/95, C-48/95, C-49/95, C-50/95, C-60/95, C-81/95, C-92/95 AND C-148/95

12 The plaintiffs then brought separate actions before the Tribunale di Genova against those orders, claiming that under the Community legislation agricultural products included fishery products and related products of first-stage processing, such as the 'prepared and preserved fish' mentioned in the Annex to Regulation No 3835/90. They also claimed that the conditions laid down in Article 5(2) of Regulation No 1679/79 were fulfilled.

13 Regulation No 1679/79, which applied until 31 December 1993, on which date it was superseded by the Community Customs Code laid down by Council Regu­ lation (EEC) No 2913/92 of 12 October 1992 (OJ 1992 L 302, p. 1), provided that, where the customs authorities found that duties legally due had not been required of the person liable for payment, they were to take action to recover them within three years.

14 However, Article 5 of Regulation No 1679/79 provided:

'1 . No action may be taken by the competent authorities for recovery where the amount of the import duties or export duties subsequently found to be lower than the amount legally due was calculated:

15 In those circumstances, the national court stayed proceedings and, in the various actions pending before it, referred the following questions to the Court for a pre­ liminary ruling:

(1) Does the suspension of customs duties as provided for in Article 1(1) of Regu­ lation (EEC) No 3416/91 of 25 November 1991, in respect of imports from Spain, for the benefit of the agricultural products listed in the Annex to Regu­ lation (EEC) No 3835/90, also apply to imports from that country of tuna in olive oil?

(2) May the competent customs authorities, pursuant to Article 5(1) and (2) of Regulation (EEC) No 1697/79 of 24 July 1979, as supplemented by Regulation (EEC) No 1715/90 of 20 June 1990, and Article 2 of implementing Regulation (EEC) No 2164/91 of 23 July 1991, initiate 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 of an erroneous interpre­ tation of the Community legislation in force, but which subsequently proved to be due on the basis of a different interpretation of the same Community legislation provided by the Commission after consulting its Legal Service, where the person liable observed all the provisions laid down by the rules in

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JUDGMENT OF 12. 12. 1996 — JOINED CASES C-47/95, C-48/95, C-49/95, C-50/95, C-60/95, C-Sl/95, C-92/95 AND C-148/95

force as far as his customs declaration was concerned and it does not appear that that person was aware that the interpretation initially given to the Com­ munity legislation by the Italian authorities was erroneous?

OLASAGASTI AND OTHERS v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

20 Provisions granting suspension of customs duties are to be interpreted strictly according to their terms and may not therefore be applied, contrary to their word­ ing, to products which they do not mention (see, to that effect, Case 58/85 Ethicon v Hauptzollamt Itzenhoe [1986] ECR 1131, paragraph 13).

21 Whilst it is true, first, that according to the third recital in its preamble, Regulation No 3416/91 sought to ensure that agricultural products imported from Spain and Portugal were treated no less favourably than the same products imported from the four non-member countries mentioned in Regulation No 3835/90 and granted preferential treatment, and, second, that preserved tuna in olive oil ranks among the agricultural products listed in the Annex to the latter regulation, the fact nev­ ertheless remains that the wording of Article 1(1) of Regulation No 3416/91 makes no reference to Article 173 of the Act of Accession, which provides for the pro­ gressive abolition of customs duties on fishery products.

22 In that regard, it should be noted that the same regime was laid down for Portugal. Article 1(1) of Regulation No 3416/91 refers to Article 243(1) of the Act of Acces­ sion and that provision, which is identical to Article 75(1), covers agricultural products other than fishery products but docs not mention Article 360, which relates to fishery products.

23 Furthermore, the suspension of customs duties by Article 1(1) of Regulation No 3416/91 was a matter decided by the Commission on the basis of Article 75(4) of the Act of Accession, which, like Article 243(4) concerning Portugal, empowers it to suspend customs duties on the products mentioned in that article. However, no provision of the Act of Accession empowers the Commission to suspend duties on fishery products.

27 Article 5 of Regulation No 1679/79 provides for two distinct regimes.

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OLASAGASTI AND OTHERS v AMMINISTRAZIONE DELLE FINANZE DELLO STATO

28 The first regime, provided for in Article 5(1), covers situations in which the amount of duty found subsequently to be lower than the amount legally due was calculated on the basis of provisions of a general nature subsequently invalidated by a court decision (second indent) or on the basis of information given by the customs authorities themselves which is binding on them (first indent).

29 According to settled case-law, such information can only be measures relating to the tariff classification of goods addressed by the competent authorities directly to a particular trader in a specific case (see, to that effect, Case C-80/89 Behn Ver- packungsbedarf [1990] ECR I-2659, paragraph 22).

30 Moreover, as the Court indicated in Case C-371/90 Beirafrio v Alfândega do Porto [1992] ECR I-2715, paragraph 15, the category of acts of customs authorities cov­ ered by that provision was exhaustively defined by Council Regulation (EEC) No 1715/90 of 20 June 1990 on the information provided by the customs authori­ ties of the Member States concerning the classification of goods in the customs nomenclature (OJ 1990 L 160, p. 1).

34 Second, the error committed by the competent authorities must be such that it could not reasonably have been detected by the person liable, notwithstanding his professional experience and the care expected of him. In that respect, the national court may first take account of the complexity of the provisions applicable in this case and in particular the fact that the expression 'agricultural products' used in Article 38 of the Treaty includes fishery products. It may then take into consider­ ation the objective of Regulation No 3416/91, namely suspension of duties on products from Spain on the same terms as those applied under another regulation to certain products — including preserved fish — originating in Bolivia, Colombia, Ecuador and Peru. Finally, it may take account of the fact that Regulation No 3416/91 expressly mentioned the regulation suspending duties on products originating in the four South American countries mentioned above.

35 Third, under Article 5 of Regulation No 1697/79 the person liable must have acted in good faith and complied with all the provisions laid down by the legislation in force so far as his customs declaration is concerned. That too is a matter for the national court.

36 Having regard to the foregoing considerations, the answer to the second question must be that it is for the national court to establish whether the conditions laid down in Article 5(2) of Regulation No 1679/79 are fulfilled. In determining whether or not the error committed by the authorities could reasonably have been detected by the person liable account should be taken, in particular, of the nature of the error, the professional experience of the trader concerned and the degree of

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Tribunale di Genova, by orders of 26 January, 16, 17 and 23 February, 9 and 30 March 1995, hereby rules:

1. The suspension of the residual customs duties applicable to imports from Spain into the Community of Ten in accordance with Article 75(1) of the Act of Accession, provided for in Article 1(1) of Commission Regulation (EEC) No 3416/91 on certain residual duties applicable in 1991 in the frame­ work of the successive reduction in accordance with the Act of Accession of Spain and Portugal for the agricultural products listed in the Annex to

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JUDGMENT OF 12. 12. 1996 —JOINED CASES C-47/95, C-48/95, C-49/95, C-50/95, C-60/95, C-81/95, C-92/95 AND C-148/95

Council Regulation (EEC) No 3835/90 of 20 December 1990 amending Regulations (EEC) No 3831/90, (EEC) No 3832/90 and (EEC) No 3833/90 in respect of the system of generalized tariff preferences applied to certain products originating in Bolivia, Colombia, Ecuador and Peru, does not apply to imports of preserved tuna in olive oil from Spain.

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