C-370/96

II — Legal context

2. According to the order for reference, Covita, a Greek manufacturing company, commenced importing fresh cherries for pro- 3. The mechanism which governs the imposi- cessing from Bulgaria into Greece on 28 May tion of countervailing charges can be found in 1992. The imports at issue in the present case Council Regulation (EEC) N o 1035/72 of took place between 24 June and 1 July. The cherries were declared upon import at the 1 — OJ 1992 L 168, p. 18. 2 — The Commission states that an initial fax was sent to the Greek Ministry of Agriculture on 23 June 1992 informing it * Original language: English. of the adoption of Regulation No 1591/92.

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COVITA v GREEK STATE

3 — OJ, English Special Edition, First Series 1972 (II), p. 437. 4 — The most recent amendment, before the events giving rise to 6. Article 1 of Commission Regulation (EEC) the present case, is contained in Council Regulation (EEC) N o 1156/92 of 28 April 1992 amending Regulation (EEC) N o 956/92 of 15 April 1992 fixing for the N o 1035/72 on the common organisation of the market in fruit and vegetables, OJ 1992 L 122, p. 3. 5 — OJ 1987 L 88, p. 17. 6 — The word 'the' appears in the Official Journal, but is clearly a clerical error. 7 — OJ 1991 L 259, p. 1.

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OPINION OF MR FENNELLY — CASE C-370/96

1992 marketing year the reference price for of the person liable for payment, they shall cherries 8 fixed the reference prices for various take action to recover the duties not collected. periods of that year for cherries falling within C N Code 0809. These prices were expressed in 'ecus per 100 kilograms net, of packed products of class I, of all sizes'.

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 originally required of the person liable for 7. Regulation N o 1591/92 applied a counter- payment or, where there is no entry in the vailing charge of E C U 37.86 per 100 kilo- accounts, from the date on which the cus- grams to cherries ( C N Code ex 0809 20) origi- toms debt relating to the said goods was nating in Bulgaria. This Regulation was incurred.' published on 23 June 1992 and entered into force on 24 June 1992.

The situations in which the first paragraph may be applied, and the detailed procedural (a) calculate the amount of duty in question, arrangements to be followed for this purpose, and shall be determined in accordance with the procedure laid down in Article 25. 12 Repay- ment or remission may be made subject to special conditions.' (b) determine the person liable for payment of that amount.'

11. Article 3(1) of Council Regulation (EEC) N o 1854/89 of 14 June 1989 on the entry in the accounts and terms of payment of the amounts of the import duties or export duties Article 4(1) of Regulation N o 1854/89 states: resulting from a customs debt 13 provides, as a general rule, for a customs debt arising from acceptance of the declaration of goods for a customs procedure to be entered in the accounts as soon as it has been calculated and within two days at the latest of the date on 'The time-limits for entry in the accounts referred to in Article 3 may be extended:

10 — OJ 1979 L 175, p. 1. 11 — Council Regulation (EEC) No 3069/86 of 7 October 1986 amending Regulation (EEC) No 1430/79 on the repayment or remission of importor export duties, OJ 1986 L 286, p. 1. 12 — See Articles 4 and 6 of Commission Regulation (EEC) (a) either for reasons to do with the admin- No 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of istrative organisation of the Member Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties, OJ 1986 L 352, p. 19. States, and in particular where the accounts 13 — OJ1989L 186, p. 1. are centralised;

III — National proceedings

12. Covita seeks the annulment of the deci- sion of 21 December 1992 of the customs 13. The national court referred the following office of Skydras to impose, post-clearance, a questions to the Court for a preliminary ruling

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COVITA v GREEK STATE

15. As the first and second questions need 2. Are the time-limits laid down in Articles 3 not be answered if it is established that the and 5 of Council Regulation (EEC) countervailing charge imposed by Regulation N o 1854/89 for determining customs duty N o 1591/92 does not apply to cherries

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O P I N I O N OF MR FENNELLY — CASE C-370/96

imported for industrial processing, it is logical employed. Covita cites a number of Commu- to examine the third question first. nity measures in which the term 'ex' is expressly stated to indicate that the goods in question are those corresponding to a narrower, more precise description than that arising from the use of a C N Code on its own. 15

(i) The third question

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COVITA v GREEK STATE

17 — The term is also used, without definition, in Annexes I 2nd II to the Treaty. 18 — See, as one example among many, Case C-467/93 Analog Devices [1995] ECR I-1403. 19 — Note (a) in the Annex to Council Regulation (EEC) N o 1509/92 of 5 June 1992 withdrawing Hungary, Poland and Czechoslovakia from the lists of beneficiaries of the Community generalised preferences scheme as from 1 March 1992, OJ 1992 L 159, p. 1; Note (a) in the Annex to Council Regulation (EEC) N o 2245/92 of 27 July 1992 establishes Community statistical surveillance for certain agricultural products originating in Cyprus, Egypt, Jordan, Israel, Tunisia, Syria, Malta, Morocco and Lebanon which are subject to reference quantities (1992), OJ 1992 L 218, p. 125; see also Note (a) in Annexes C L C II and C IV to Regulation N o 3953/92, which was referred to in argument by Covita. 19. N o definition of the term 'ex' for general The different formulation employed in Note 1.1 in Annex 9 to Regulation N o 2454/93, which was also referred to by purposes in the Community customs legisla- Covita, seems to have the same meaning.

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O P I N I O N O F MR FENNELLY — CASE C-370/96

22. There is evidendy no difference other than a semantic one between the interpreta- tions suggested by Covita and by Greece: an 'ex Code' refers to a class of goods which is extracted from the wider class covered by the code in question; it thus relates exclusively to that narrower class. It is clear, however, that 21. Furthermore, a measure may list a par- the explanation offered by Greece in the con- ticular C C T or C N Code more than once, crete case of Regulation N o 1591/92 cannot each time preceded by the term 'ex' and fol- be accepted. It was not necessary to precede lowed by the description of a different subset Code 0809 20 with the term 'ex' in order to of goods falling within that code. Thus, confine the application of the countervailing Code ex 8542 11 99 appears several times in charge to cherries, as distinct from the other fruit covered by Code 0809, since this was already accomplished by the use of the addi- 20 — I have looked exclusively at measures which have featured tional digits 20. O n the other hand, it is also in the Court's case-law. For brevity's sake, I give here only clear, contrary to Covita's submission, that an two of the more recent examples, which are not mentioned in the discussion which follows: compare the description at implicit restriction on the class of cherries Code ex 8536 5000 in Council Regulation (EEC) N o 3696/88 of 18 November 1988 temporarily suspending the autono- normally covered by Code 0809 20, excluding mous Common Customs Tariff duty on certain industrial either cherries intended for industrial pro- products, OJ 1988 L 329, p. 1, with that at Code 8536 5000 in Council Regulation (EEC) N o 2658/87 of 23 July 1987 on cessing or all cherries other than those in the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 1987 L 256, p. 1 (Case C-338/90 Hamlin Electronics v Haupuollamt Darmstadt [1992] ECR I-2333); and the description at Code ex 51.01 A in Council Regula- tion (EEC) N o 1162/79 of 12 June 1979 temporarily sus- pending the autonomous Common Customs Tariff duties on 21 — OJ 1989 L 332, p. 1. certain industrial products, OJ 1979 L 147, p. 1, and Council 22 — Cited in footnote 17 above. See also the double references to Regulation (EEC) N o 1481/80 of 9 June 1980 temporarily Codes ex 15.07, ex 15.17 and ex 23.04, describing respec- suspending the autonomous Common Customs Tariff duties tively olive oil and vegetable oils other than olive oil, in on certain industrial products, OJ 1980 L 148, p. 1, with that various states, in Council Regulation (EEC) N o 136/66 of at Code 51.01 A in Council Regulation (EEC) N o 3000/79 22 September 1966 on the establishment of a common organi- of 20 December 1979 amending Regulation (EEC) N o 950/68 sation of the market in oils and fats, OJ, English Special Edi- on the Common Customs Tariff, OJ 1979 L 342, p. 1 (Case tion, 1965-1966 (I), p. 221 (Case 129/81 Fancom v SIAT 58/85 Ethicon v Hauptzollamt Itzehoe [1986] ECR 1131). [1982] ECR 967).

24. N o express limitation of the scope of application of the countervailing charge can, I think, be identified from the fact that C N Code 0809 20 was further subdivided at the material time by reference to two time periods: from 1 May to 15 July (0809 20 10) and from 16 July to 30 April (0809 20 90). However, if a merely implicit restriction of the normal class of goods covered were to be deduced from the use of an 'ex Code', it seems to me that a restriction by time period would be the most obvious one. It may possibly have been intended, when read with the date of entry into force of Regulation N o 1591/92 in Arti- cle 2 (24 June 1992), to convey simply that 23. In any event, it appears, in so far as any the countervailing charge, being non- conclusions can be drawn from the legislative retroactive, applied only to that subset of practice, that an 'ex Code' should be accom- Code 0809 20 Cherries which was imported panied by a detailed description of the nar- after that date. rower class of goods to which it applies, rather than by a merely implicit or speculative restric- tion. In the present case, the only express restriction in Regulation N o 1591/92 on the application of the countervailing charge to cherries is that they originate in Bulgaria. 23 However, the specification of the third country of origin arises from the terms of Regulation

26. Covita refers to the three conditions to be satisfied pursuant to Article 5(2) of the Regulation on recovery with the consequence that the competent national authorities should refrain from taking action for post-clearance recovery, viz.: (i) that the duty was not imposed by reason of an error by the cus- 28. France and the Commission submit that toms authorities themselves; (ii) that the error the mere acceptance of Covita's customs dec- could not reasonably have been detected by larations by the Skydras customs office over the importer, acting in good faith; and (iii) that a very brief period does not constitute an the importer observed all relevant rules erroneous act for the purposes of Article 5(2) regarding his customs declaration. The of the Regulation on recovery, in contrast to national court accepts that the third condition the position in Hewlett Packard France v is satisfied, and that Covita acted in good Directeur General des Douanes. 24Greece, faith. Covita submits that the assurance by France and the Commission state that the the Skydras customs office that no charge had imposition of the countervailing charge was been imposed constitutes an erroneous act reasonably detectable through consultation of attributable to the competent customs the authoritative source, the Officiai Journal authority for the purposes of the first condi- of the European Communities. 25 For the same tion. reason, Covita must be deemed to have been manifestly negligent within the meaning of Article 13 of Regulation N o 1430/79. This point applied a fortiori in the present case because, on the basis of prices on the market, Covita could expect, and did expect, that a countervailing charge would be introduced. 27. Regarding the second condition, Covita Only proof that the relevant issue of the remarks that it has limited professional expe- Official Journal had not been circulated in rience, having been established only in 1991. time would aid Covita's case. The Commis- It adds that it must be inferred from the telex sion argues that the fact that it also contacted sent by the Commission to the Greek Min- the Greek Ministry of Agriculture directly istry of Agriculture on 29 June 1992 informing about the adoption of Regulation N o 1591/92 it of the imposition of the countervailing cannot be construed as evidence to this effect. charge that the Official Journal of 23 June Greece observes that post-clearance recovery 1992, in which Regulation N o 1591/92 was published, had not been circulated before that date. Covita also argues that it should not be expected to know more than the competent 24 — Case C-250/91 [1993] ECR I-1819, hereinafter 'Hewlett Packard". customs authority about the applicable duties. 25 — Case 161/88 Binder v Hauptzollamt Bad Reichenhall [1989] This combination of circumstances also con- ECR 2415 (hereinafter 'Binder'), paragraphs 19 and 20; Case C-80/89 Beim Verpackungsbedarf[1990]ECR I-2659, para- stitutes a 'special situation' within the meaning graphs 13 and 14; Case T-75/95 Günzler Aluminium v Com- mission [1996] ECR II-497 (hereinafter 'Günzler Alu- of Article 13(1) of Regulation N o 1430/79, minium'), paragraph 50.

30. It is well established in the case-law on Article 5(2) of the Regulation on recovery 29. As regards Article 5(2) of the Regulation regarding whether an error could reasonably on recovery, the constant case-law of the have been detected by an importer acting in Court shows that it is for the national court good faith that a diligent trader who has to apply its provisions in the light of the facts accumulated some experience of import and of the case. 26 The competent authorities are export transactions is expected to consult the not entitled to take action after customs clear- Official Journal of the European Communi- ance to recover duties which have not been ties in order to acquaint himself with the collected if the three conditions set out in Community law applicable to the transactions Article 5(2) are satisfied. 27 An error made by which he undertakes. As a result, in both the customs authorities themselves is deemed Binder 31 and Behn Verpackungsbedarf, 32 the only to arise from their own acts, 28 and does Court stated that such a trader cannot rely on not ordinarily result from the initial accep- the statement of rates in a national customs tance of a customs declaration at the point of tariff manual in order to determine the appli- importation, which is subject to the carrying cable rate of duty. The Court also stated that out of subsequent checks. 29 The question a trader may, thus, be required to be better whether any error on the part of the customs informed than the competent national author- authorities could reasonably have been ity. 3 3In my view, the same reasoning must detected by the person liable, acting in good apply in respect of the statements or assur- faith, requires the national court to have regard ances given to Covita by the Skydras customs to 'the nature of the error, the professional office. The national court, which has the task of assessing the elements of good faith and due diligence of a trader such as Covita, should take account of the fact that, while its 26 — See, for «ample, Case C-64/89 Deutsche Fernsprecher [1990] regular inquiries may tend to establish its ECR I-2535; Case C-371/90 Beirafrio [1992] ECR I-2715; Case C-187/91 Belgian State v Belavo [1992] ECR I-4937. good faith, they may also demonstrate its 27 — Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199; Case 378/87 Top Hit Hobvertrieb v Commis- sion [1989] ECR 1359. 28 — Case C-348/89 Mecanarte [1991] ECR I-3277, paragraph 23; Joined Cases C-153/94 and C-204/94 Faroe Seafood and 30 — See, for example, Faroe Seafood, paragraph 99; Deutsche Others [1996] ECR I-2465, hereinafter 'Faroe Seafood', para- graph 91. Fernsprecher, paragraph 24; Hewlett Packard, paragraph 22. 29 — Faroe Seafood, cited immediately above, paragraph 93. The 31 — Paragraph 22. position changes if large numbers of similar declarations are 32 — Paragraph 14. accepted without objection over a considerable period of 33 — Ibid., paragraph 17; see also Deutsche Femsprecher, para- time; see Hewlett Packard, paragraphs 20 and 21. graph 17; Gümler Aluminium, paragraph 47.

lively appreciation of the fact that it was relevant issue was made available at the Office trading in an environment associated with a for Official Publications of the European high degree of risk. High profits are attended Communities, situated in Luxembourg. 37 If by high risks. The effectiveness of the imposi- the date borne by the issue in question dif- tion of a countervailing charge could be under- fered from the actual date of publication, it is mined if traders could escape its effect by the latter date which must be taken into pleas, however genuine, of ignorance of their account in assessing the information available existence. to Covita. O n the other hand, the date on which a regulation is to be regarded as pub- lished does not vary according to the avail- ability of the Official Journal in the territories of the different Member States, irrespective of any delays which may arise in spite of efforts to ensure its rapid distribution. 38 The issue of a delay in the publication, in Luxembourg, of the Official Journal of 23 June 1992 is a matter to be decided by the national court. 39 Ishould state, however, that the mere fact of the Com- mission having sent an additional telex or fax informing the Greek authorities directly of the adoption of Regulation N o 1591/92 does not, in my view, constitute evidence of delayed 31. The only matter which might assist Covita publication. in this regard is if the Official Journal of 23 June 1992 had not been circulated in its Greek-language version on the date stated on its cover. In that case, Covita could not be expected to have been aware of the adoption of Regulation N o 1591/92. 34 Furthermore, the countervailing charge would not have been applicable at all before the actual date of publication, in the absence of any evident intention that Regulation N o 1591/92 have retroactive effect. 35 In the absence of evidence 32. In the absence of any evidence before the to the contrary, a regulation is to be regarded Court that the publication of the Official as published throughout the Community on Journal was delayed, and given the cumula- tive character of the conditions set out in the date borne by the issue of the Official Article 5(2) of the Regulation on recovery, Journal containing the text of that regula- there is no need for me to address the sepa- tion. 36 However, what is important is what rate issue whether there was in this case an the Court has referred to as the actual date of error attributable to an act of the competent publication, which is that on which the authorities.

33. The Court stated in Hewlett Packard that which Covita does business may correspond Article 13 of Regulation N o 1430/79 and Arti- in some respects to those of the relatively cle 5(2) of the Regulation on recovery pursue small companies, located far from Athens, the same aim, 'namely to limit the post- which were applicants in Oryzomyli Kavallas clearance payment of import and export duties v Commission, 44 it cannot, in my view, be to cases where such payment is justified and said not to have been negligent, for the pur- is compatible with a fundamental principle poses of Article 13 of Regulation N o 1430/79, such as that of the protection of legitimate unless it is established that the Greek-language expectations'. 40 The Court continued: version of Regulation N o 1591/92 was unob- tainable from the Office for Official Publica- tions of the European Communities during some or all of the period in question. In these circumstances, it is not necessary for me to discuss whether there existed a special situa- tion within the meaning of that Article.

'Seen in that light, the question whether the error was detectable, within the meaning of Article 5(2) of Regulation N o 1679/79, is linked to the existence of obvious negligence or deception within the meaning of Article 13 of Regulation N o 1430/79, and therefore the conditions laid down by the latter provision must be assessed in the light of those laid down in Article 5(2) of Regulation N o 1679/79.' 41 (iii) The second question

36. France and the United Kingdom submit 37. I agree with all of the arguments pre- that the time-limits set out in Regulation sented by France, Greece, the United Kingdom N o 1854/89 are designed merely to harmo- and the Commission against the interpreta- nise accounting practices and, thus, competi- tion of Articles 3 and 5 of Regulation tive conditions in the Community and to N o 1854/89 as establishing mandatory time- determine when monies should be transferred limits for the post-clearance recovery of cus- to the Community budget, and have no rel- toms duties. It is clear that the time-limits in evance to post-clearance recovery of customs these provisions relate to the entry in accounts duties. Furthermore, France, the United and not to the recovery of the sums in ques- Kingdom and the Commission argue that the tion and were laid down for accounting pur- date of commencement of the period referred poses rather than in order to create rights for to in Article 5 of Regulation N o 1854/89, individual traders. This, I think, is demon- when the customs authorities are in a posi- strated conclusively by the existence of a dis- tion to calculate a customs debt, is not nor- tinct time-limit of three years for post- mally known to individual traders. They state, as does Greece, that Article 2(1) of the Regu- clearance recovery in Article 2(1) of the lation on recovery provides the sole limita- Regulation on recovery and, in particular, by tion period in Community law on actions for the fact that provision is made for this time- recovery. France observes that the provision limit to run either from the date of entry of in the second indent of Article 2(1) for calcu- the customs debt in the accounts or, where lation of the three-year recovery period in the this is not done, from the date that the cus- event of failure to enter a customs debt in the toms debt was incurred. Article 2(1) provides accounts demonstrates that such failure does the only limitation period for the post- not affect the authorities' right of recovery. clearance recovery of customs debts.

(3) The time-limits laid down in Articles 3 and 5 of Council Regulation (EEC) N o 1854/89 of 14 June 1989 on the entry in the accounts and terms of pay- ment of the amounts of the import duties or export duties resulting from a customs debt are not preclusive of the right of competent customs authorities to proceed with the post-clearance recovery of customs duties, which is subject to the time-limit laid down in Article 2(1) of Regulation N o 1697/79.

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