C-315/96

LOPEX EXPORT v HZA HAMBURG-JONAS

OPINION OF ADVOCATE GENERAL LÉGER delivered on 4 November 1997 *

1. The questions which have been referred 3. Article 13 of the 1990 regulation provides to the Court by the Finanzgericht (Finance as follows: Court) Hamburg seek to establish whether a rule of Community law which permits the Community legislature to amend the cus­ toms nomenclature without laying down transitional provisions is compatible with the Where, as a result of the adoption of: principles of legal certainty and protection of legitimate expectations, and ask what conse­ quences would ensue if such a rule were — a regulation amending the customs found to be incompatible. nomenclature, or

— a regulation determining or affecting the classification of goods in the customs nomenclature, I — The relevant Community legislation

4. Article 14(3) and (4) of the regulation is — the use of import or export licences or worded as follows: advance-fixing certificates which are sub­ mitted at the time of completion of the formalities with a view to the acceptance of the customs declaration for the goods in question, on condition that such '3 . In the case of products in respect of licences or certificates were issued on the which an import or export licence or basis of the said binding tariff infor­ advance-fixing certificate is submitted when mation.' the customs formalities are completed, the binding tariff information which ceases to be 4 valid pursuant to paragraph 1 may continue to be invoked by the holder of the infor­ mation during the remainder of the period of 5. Article 1(1) of Council Regulation (EEC) validity of that licence or certificate. No 3798/91 5 amended the combined nomenclature annexed to Regulation No 6 2658/87 so as to bring modified whey, hith­ erto classified under code NC 0404 90, within code NC 0404 10. From 1 January 1992, when the amending regulation came into force, code NC 0404 10 covered modi­ fied and non-modified whey.

4. The application under the conditions laid down in paragraph 3 of the classification given in the binding tariff information shall 6. This amendment was not accompanied by have effect only in regard to: any transitional arrangements.

— the determination of the import or export duties, II — Facts and national proceedings

— the calculation of export refunds and any 7. The main proceedings concern the grant other amounts granted on imports or of a refund for the export of partly desug- exports within the framework of the ared whey powder marketed under the name common agricultural policy, and

9. By the original binding tariff information issued on 5 December 1988, the customs authorities notified Lopex's suppliers that the abovementioned product was to be clas­ sified under subheading 0404 90 of the com­ bined nomenclature. Owing to hesitation as between subheadings 90 and 10, the customs 12. On receipt of that tariff information, authorities withdrew the information on 30 Lopex applied to have the previous classifi­ October 1990. cation under code 0404 9013 1200 retained as valid until 30 April 1992. Following an exchange of correspondence with Lopex, the customs authorities decided on 9 December 1991 that the tariff information would remain provisionally valid for six months after its revocation. 10. On 14 December 1990 Lopex itself applied for the issue of binding tariff infor­ mation in respect of the product in question. The information, issued by the customs authorities on 5 June 1991, classified Anilac under subheading 0404 9013 0000 of the combined nomenclature. On receipt of this information, Lopex asked for clarification of the latest subheadings. On 26 August 1991, 13. Regulation No 3798/91, which was the customs authorities accordingly issued adopted on 19 December 1991, provided that supplementary binding tariff information non-modified whey would thenceforth be classifying the product under subheading classified under subheading 0404 10, but did 0404 9013 1200. In the tariff information not lay down any transitional arrangements.

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OPINION OF MR LÉGER — CASE C-315/96

16. The defendant in the main proceedings 18. Finding that the product Anilac exported rejected the complaint relying on the amend­ by Lopex should have been classified since 1 ment of the customs nomenclature by the January 1992 under subheading 040410 1991 regulation and on the first paragraph of which, unlike subheading 0404 90, does not Article 13 of the 1990 regulation. confer entitlement to an export refund, and that, after that date, Lopex could only claim a refund if the binding tariff information previously issued were still valid, the Finan­ zgericht Hamburg decided to stay the

17. Lopex then brought an action before the Finanzgericht Hamburg for an export refund 7 — The order for reference mentions two dates for the issue of tariff information, 26 and 28 August 1991, but this does not in the sum of DM 889 880.04 in accordance affect the matter or the answer to the questions submitted.

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proceedings pending a preliminary ruling (EEC) No 1715/90, under which the from the Court on the following questions: advance-fixing certificate must have been "issued on the basis of the said binding tariff information"?'

'1 . Is the first indent of the first paragraph of IV — First question Article 13 of Regulation (EEC) No 1715/90, in so far as it prescribes that binding tariff information ceases to be valid immediately as a result of the adoption of a regulation amending the customs nomenclature, with no transitional period, compatible with Community law from the points of view of 19. Before examining the validity of the first protection of legitimate expectations and indent of the first paragraph of Article 13 of legal certainty? the 1990 regulation, as requested by the national court, let me point out that this regulation was repealed by the abovemen- tioned Regulation No 2913/92 ('the Code').

8 — Article 12(5) and (6) provides as follows: 5. Binding tariff information shall cease to be valid: (a) where a regulation is adopted and the information no longer conforms to the law laid down thereby; (b) where it is no longer compatible with the interpretation of Is a decision on the limited continuing valid­ one of the nomenclatures referred to in Article 20(6) either at the Community level ... or at the international level ... ity of binding tariff information to be mea­ (c) where the holder is notified of its withdrawal, revocation sured against the general conditions which or amendment. 6. The holder of binding tariff information which ceases to have been developed for the protection of be valid pursuant to paragraph 5(b) or (c) may still use that information six months from the date of publication or noti- legitimate expectations, and in particular fication provided that he concluded binding contracts for the does it presuppose an expectation on the part purchase or sale of the goods in question, on the basis of the binding information before that tariff measure was adopted. of the exporter to that effect which deserves However, in the case of products for which an import, export or advance-fixing certificate is submitted when cus- protection as against the Community inter­ toms formalities are carried out, the period of six months is est? Does that also apply with respect to the replaced by the period of validity of the certificate. In the case of paragraph 5(a), the regulation may lay down a third indent of Article 14(4) of Regulation period within which the previous subparagraph shall apply.

of ensuring 'a measure of legal certainty for 10 traders when carrying on their activities has been questioned precisely on the basis of the principles of protection of legitimate 11 — See Case C-401/93 GoldStar Europe [1994] ECR I-5587, paragraphs 18 and 19, and Case C-267/94 France v Com- expectations and legal certainty. mission [1995] ECR I-4845, paragraph 19. Article 9, para­ graph 1(a), of Regulation No 2658/87 permits the Commis­ sion to adopt measures, in accordance with a specific procedure including consultation of customs experts of the Member States, relating to the application of the combined nomenclature and of the integrated tariff of the European 9 — Article 253(2). Communities (Taric) concerning, in particular, the classifi­ 10 — Sec the third recital in the preamble. cation of goods in those nomenclatures.

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26. Under the second paragraph of Article the grant of an export licence on 31 Decem­ 13 of the 1990 regulation, classification regu­ ber 1991, after the publication of the 1991 lations may contain transitional provi­ regulation. 1 sions, 2 in contrast to regulations amending 13 the customs nomenclature.

27. The 1991 regulation undoubtedly 30. However, if the precise scope of the two belongs to the latter category because it clas­ regulations and of Article 13 of the 1990 sifies modified whey under code NC regulation is ascertained and the material 0404 10. The Hauptzollamt Hamburg-Jonas time is established, doubts arise as to accordingly took the view that the binding whether that expectation is legitimate. tariff information which had been issued before that regulation came into force ceased to be valid thereafter.

subject to it'. In particular, they will be protection of legitimate expectations and unable to rely on acquired rights if they have legal certainty, of a regulation which made received clear information concerning pro­ recourse to inward processing arrangements posed changes in the legal framework of with equivalent compensation subject to the their business. condition that the equivalent goods must fall within the same subheading of the Common Customs Tariff as the imported goods. How­ ever, the two products involved in equivalent compensation — cane sugar and beet sugar — had, in the space of a few years, been clas­ sified under the same tariff subheading and 33. The Community legislature must also be then under different subheadings, before able to exercise its legislative powers, which being placed once again under the same sub­ presupposes that it is free to amend existing heading. The trader's obligations in relation legislation. to the customs authorities had changed in accordance with the scope of the inward processing arrangements, which at times did and at times did not cover the products con­ cerned, depending on the amendments to the customs nomenclature.

34. In its judgment in Case C-103/96 Erida- nia Beghin-Say, the Court found that the Council had a substantial discretion in exer­ cising its powers to amend the customs 16 nomenclature.

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LOPEX EXPORT v HZA HAMBURG-JONAS

37. The Eńdania Beghin-Say judgment gives an extension of the validity of the tariff a better idea of the latitude which the Court information relied upon in support of its believes the Council has in amending the claim. combined nomenclature. The Court accord­ ingly found, indirectly but beyond doubt, that a trader cannot base a legitimate expec­ tation on a tariff subheading being main­ tained because the nomenclature is, so to speak, in a state of flux owing to the need to adapt it to changing economic circumstances. 41. It should be remembered that the bind­ ing tariff information remained provisionally valid for six months after it was revoked, and that Lopex was issued with an advance- fixing certificate eight days before the 1991 regulation was published. The complaint 38. However, the questions on which that arising from the refusal of its application for ruling was given did not relate to the need a refund was also rejected by reason, in par­ for transitional provisions which, according ticular, of the amendment of the customs 20 to Lopex, should be added to regulations nomenclature by the latter regulation. amending the customs nomenclature.

39. As there must be a means for flexible 42. Hence the loss alleged by Lopex is not a and rapid amendment of the tariff nomencla­ direct result of the 1990 regulation, Article ture, it is necessary to determine the condi­ 13 of which is the subject of the question tions under which a trader such as Lopex referred, but rather of the 1991 regulation, may be deemed to be entitled to use the tariff even if the absence of transitional arrange­ information in question and thus to benefit ments arises from the strict application of the from the arrangements applying before the earlier regulation. 1991 regulation came into force.

regulation was published in the Official Jour- tions not only as to the permanence of any nal of the European Communities on 26 June particular Community legislation, but also as 1990 and took effect on 1 January 1991. It to transitional arrangements for giving effect must therefore be concluded that, apart from to such amendments, which would be the issue of the first binding tariff infor­ capable of safeguarding their rights or expec­ 22 mation to Lopex's suppliers, each of the tations. steps taken by Lopex with a view to carrying out the export transactions in question was taken under Community legislation indicat­ ing that the validity of binding tariff infor­ mation could be called into question, with­ out transitional measures, by the immediate application of a regulation amending the cus­ 46. In my view, therefore, as Article 13 toms nomenclature. applied at the time when Lopex carried out its export transactions, it cannot rely on 'administrative measures which confer sub­ jective rights ... capable of creating a legiti­ mate expectation' or plead 'factual situations already existing, in essence, at the time when new legislation came into force', which 44. The 1990 regulation does not, as such, should remain subject to the law previously 23 adversely affect traders' interests because it in force. provides for the future and lays down rules applying to regulations which did not exist at the date of its publication. Until such regulations were adopted, the law applying to current commercial transactions was not changed in any way. Furthermore, the rule that there are no transitional arrangements in 47. Tariff information is binding on the regulations amending the customs nomencla­ authorities only in respect of the classifica­ 24 ture makes traders aware of the permanent tion of goods in the customs nomenclature risk that the nomenclature may be amended. and it cannot create acquired rights which can be relied upon as against the legislature if the information is issued at a time when a particular measure permits changes to the nomenclature to take effect without a transi­ tional period.

48. Similarly, I do not believe the Court's tion of Lopex's product, as shown by a series judgment in CNTA v Commission can be of binding tariff information notices placing cited to justify a legitimate expectation the product under different subheadings, which is said to arise from 'transactions irre­ ought to have alerted Lopex to the risk of vocably undertaken by [a trader] because he amendments to the nomenclature and has obtained ... export licences fixing the prompted it to enquire into the likelihood of 26 amount of the refund in advance'. This a change in the tariff classification and the would disregard the other grounds of that way in which such a change might take judgment, which states that such an expecta­ effect. tion constitutes a safeguard against any 27 'unforeseeable alteration' of the legislation. This does not apply to the relevant legisla­ tion in the present case because, as we have seen, the customs nomenclature is liable to 51. In other words, from 26 June 1990 change and amendments thereto are stated to Lopex must have realised that, as from 1 take effect without transitional arrangements. January 1991, any contract conferring entitlement to an export refund was subject to the risk of a change in the tariff classifica­ tion applying, without transitional measures, to current transactions and that this could call into question the anticipated refund.

49. Moreover, a trader cannot be allowed to plead ignorance of the relevant legislation even if it merely lays down rules governing the procedure for implementing future regu­ 52. Admittedly, such an exacting rule is nec­ lations. The Court has ruled that the Com­ essary only if the measure in question con­ munity provisions constitute the sole rel­ forms to the principle of legal certainty. evant positive law as from the date of their publication and everyone is deemed to know 28 that law, without making distinctions according to the nature of the rules laid down. The principle of legal certainty

56. The transitional arrangements differ according to whether an import or export licence or an advance-fixing certificate is submitted during the customs formalities for 54. Article 13 of the 1990 regulation lays the products in question or whether none of down special rules for regulations amending those documents accompanies the products. the customs nomenclature, where there can be no doubt as to their scope and content. The first paragraph of Article 13 sets out the rule that binding tariff information which is contrary to a regulation relating to the nomenclature ceases to be valid from the date on which the regulation applies, while the second paragraph distinguishes regula­ 57. In both cases, however, the wording tions amending classification regulations and refers expressly to Article 14(1), which states that these may, under certain condi­ applies to tariff information 'no longer com­ tions, provide that such information may patible with the interpretation of the customs continue to be valid for a certain period not­ 31 nomenclature', which expressly excludes withstanding the new rules. As we have seen, the possibility of extending the validity of the 1990 regulation is stated to take effect on information inconsistent with the regulations 1 January 1991. and, a fortiori, regulations amending the cus­ toms nomenclature. Therefore the rule does not give rise to any confusion.

55. Legal certainty also seems to be observed in so far as the 1990 regulation clearly distin­

58. I conclude that Articles 13 and 14 of the 1990 regulation are sufficiently clear and 30 — See Case 169/80 Gondrand Frères and Garancini [1981] ECR 1931, paragraph 17; Joined Cases 92/87 and 93/87 Commission v France and United Kingdom [1989] ECR 405, paragraph 22; Eridania Beghin-Say, cited above, para- graph 40; and Banque Indosuez and Others, cited above, paragraph 27. 31 — Emphasis added.

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