C-261/96

OPINION OF MR ELMER — CASE C-261/96

OPINION OF ADVOCATE GENERAL ELMER delivered on 12 June 1997

1. In the present case, the Corte d'Appello export duties legally due on goods entered di Venezia (Italy) has requested the Court to for a customs procedure involving the obli- give a preliminary ruling on the interpreta- gation to pay such duties has not been tion of Article 2 of Council Regulation required of the person liable for payment, (EEC) N o 1697/79 of 24 July 1979 on the they shall take action to recover the duties post-clearance recovery of import duties or not collected. export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties 1 ('the Regulation').

However, such action may not be taken after the expiry of a period of three years from the date of entry in the accounts of the amount The relevant provisions of Community law originally required of the person liable for payment or, where there is no entry in the accounts, from the date on which the cus- toms debt relating to the said goods was incurred.

2. The Regulation contains in particular the following provisions:

'Article 2

3. Between May 1978 and October 1980 Conserchimica Sri acquired from Italian importers petroleum products which had been imported under a favourable tariff arrangement. Conserchimica resold those 7. By order of 9 May 1996 the Corte products to a third party. d'Appello di Venezia decided that the case- file was to be forwarded, pursuant to the first paragraph of Article 177(b) of the Treaty, to the Court of Justice of the Euro- pean Communities, and requested it to give a preliminary ruling on the following ques- tion: 4. O n 28 April 1986, after serving several notices of assessment between February 1981 and May 1984, the Amministrazione delle Finanze dello Stato sent a tax demand to Conserchimica whereby it ordered it to pay 'Does Article 2 of Council Regulation (EEC) the VAT and customs duties, pointing out to N o 1697/79 of 24 July 1979, which pre- that end that Conserchimica was not in pos- scribes a three-year period for the recovery session of the authorization necessary for the of duties not collected, also apply to situa- purchase of goods imported under a favour- tions where the conditions were satisfied able tariff arrangement. before 1 July 1980, the date on which that regulation entered into force pursuant t o Article 11 thereof?'

5. Conserchimica contested that demand Analysis before the Tribunale (District Court), Venice, which, after referring questions to the Court of Justice for a preliminary ruling, 2 upheld the claim of the Amministrazione delle Finanze dello Stato. 8. Conserchimica submits that the period of three years prescribed in Article 2 of the 2 — Joined Cases 248/88, 254/88 to 258/88, 309/88 and 316/88 Regulation replaced the period of five years Chimica del Friuli and Others v Amministrazione delle Finanze deüo Stato [1989] ECR 2837. prescribed by the earlier national legislation

This interpretation ensures respect for the principles of legal certainty and the protec­ 10. The Commission states that Salumi and tion of legitimate expectation, by virtue of Others concerned the payment of duties which the effect of Community legislation made before the date of the entry into force must be clear and predictable for those who of the Regulation, while the present case are subject to it. The Court has repeatedly concerns customs debts which were not paid emphasized the importance of those prin­ by the time the Regulation entered into ciples, in particular in the judgments of force, but which had already been incurred 25 January 1979 in Case 98/78 Račke v at that moment. The reasoning followed by HauptzolLmt Mainz ([1979] ECR 69) and the C o u r t in the Salumi case must none the Case 99/78 Decker v Hauptzoüamt Landau less be applied also to the present case. ([1979] E C R 101), in which it stated that in general the principle of legal certainty pre­ cludes a Community measure from taking effect from a point in time before its publica­ tion and that it may be otherwise only exceptionally, where the purpose to be achieved so demands and where the legiti­ 11. It must be observed, as the Commission mate expectations of those concerned are has pointed out, that the present case, unlike duly respected [paragraph 10]. Salumi and Italgrani, concerns duties which were paid after the entry into force of the Regulation. However, the duties relate t o situations which arose prior to the entry into force of the Regulation. In this regard, it should be stated first that the regulation in question is intended to pro­ vide a body of rules covering the post- clearance recovery of import and export 3 — Joined Cases 212/80 to 217/80 Amministrazione delie duties, resulting from the application of the Fournît dello Suto v Salumi and Others [1981] ECR 2735. 4 — Casc 82/82 Ditta Italgrani [1982] ECR 4323. common agricultural policy or from the

This results, first, from the very wording of the provisions of the regulation, which 13. I am of the view that that reasoning impose either an obligation or a prohibition applies also to the present case, which does in relation to bringing proceedings for the in fact concern the recovery of duties which recovery of duty and which are therefore not should have been paid at the time, prior to designed to cover actions already com- the entry into force of the Regulation, when menced at the date of the entry into force of Conserchimica purchased the products in the regulation. Secondly, it also follows from question. I would refer in that respect to the period of time 'which elapsed between what the Court held in its judgment of the adoption of the regulation, on 24 July 1 April 1993 in the Lageder cases: 5 1979, and its entry into force, on 1 July 1980, a time-lapse which demonstrates that the Council did not consider the implementation of the Community rules to be urgent [para- graph 13]. 'However, that regulation was not in force at the material time and is therefore not appli- cable (see judgment in Joined Cases 212/80 to 217/80 Amministrazione delle Finanze dello Stato v Salumi and Others [1981] Furthermore, if the scope of the regulation ECR2735, paragraph 15)' (paragraph 26). were extended so as to include all actions pending before the national courts at the date of its entry into force, the application of 5 — Joined Cases C-31/9I to C-44/91 Lageder and Others [1993] national law or of the Community rules ECR 1-1761, paragraph 26.