C-48/98

OPINION OF MR JACOBS — CASE C-48/98

OPINION OF ADVOCATE GENERAL JACOBS delivered on 29 April 1999 *

1. In this case the Finanzgericht (Finance be presented to customs 4 and covered by a Court), Bremen, has referred a series of 'summary declaration' 5 identifying the questions on the interpretation of the goods. The goods must be assigned a Community Customs Code 1and the valid- customs-approved treatment or use, 6pend- ity and interpretation of the regulation ing which they have the status of goods in implementing the Code. 2 temporary storage. 7The formalities neces- sary for that assignment must be carried out within 20 days from the lodging of the summary declaration in the case of goods carried otherwise than by sea 8 although the customs authorities may, where circum- 2. Before turning to the facts and the main stances so warrant, authorise an extension proceedings and setting out the legislation of that period provided that the extension in more detail, it is helpful to summarise does not exceed the genuine requirements the relevant Community customs proce- justified by the circumstances. 9 dures laid down by the Customs Code.

Outline of the relevant customs procedures

3. Goods brought into the Community 4. 'Customs-approved treatment or use of customs territory must immediately be goods' includes the placing of goods under conveyed to a customs office or to a free a customs procedure and their re-exporta- zone; 3 in the former case, the goods must tion from the Community customs terri-

* Original language: English. 1 — Council Regulation (EEC) No 2913/92 of 12 October 1992 4 — Article 40 of the Customs Code. establishing the Community Customs Code, OJ 1992 5 — Article 43 of the Customs Code. L 302, p. 1. 6 — Article 48 of the Customs Code. 2 — Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council 7 — Article 50 of the Customs Code. Regulation (EEC) No 2913/92, OJ 1993 L 253, p. 1. 8 — Article 49(1) of the Customs Code. 3 — Article 38(1) of the Customs Code. 9 — Article 49(2) of the Customs Code.

9. Outward processing is a procedure under which Community goods are tem- 7. Where, moreover, there would be porarily exported for processing outside the exemption under the legislation from cus- toms duties incurred on release for free 15 — Article 212a of the Customs Code, inserted by Regulation (EC) No 82/97 of the European Parliament and of the Council of 19 December 1996 amending Regulation (EEC) 10 — Article 4(15) of the Customs Code. No 2913/92, OJ 1997 L 17, p. 1. 11 — Article 4(16) of the Customs Code. 16 — Article 239(1) of the Customs Code. 12 — Article 204(1) of the Customs Code. 17 — Article 900(1 )(o) of the implementing regulation as amen- ded by Commission Regulation (EC) No 3254/94 of 13 — Article 860 of the implementing regulation. 19 December 1994 amending Regulation (EEC) 14 — Article 859 of the implementing regulation. No 2454/93, OJ 1994 L 346, p. 1.

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an electronic accounting system and that it the proceedings and referred the following had suffered staff shortages due to illness. questions to the Court for a preliminary ruling:

13. Between 20 October 1994 and 15 Feb- ' 1 . Does Article 859 of Commission Reg- ruary 1995 the Customs Office issued 125 ulation (EEC) No 2454/93 of 2 July notices of assessment concerning customs 1993 laying down provisions for the clearances relating to the period from implementation of Council Regulation February to December 1994; the notices (EEC) No 2913/92 establishing the were based on Article 204(1) of the Code. Community Customs Code (OJ 1993 The applicant lodged appeals against all the L 253, p. 1) ("the implementing regu- notices, arguing essentially that no customs lation") contain a validly constituted debt had arisen under that provision since and exhaustive set of rules on failures, its failures had had no significant effect on within the meaning of Article 204(l)(a) the correct operation of the temporary of C o u n c i l R e g u l a t i o n (EEC) storage or customs procedure in question. No 2913/92 of 12 October 1992 estab- In the alternative the applicant claimed lishing the Community Customs Code repayment of the duties levied in accor- (OJ 1992 L 302, p. 1) ("the Customs dance with Article 239 of the Code in Code"), which "have no significant conjunction with Article 900(1 )(o) of the effect on the correct operation of the implementing regulation. By two decisions temporary storage or customs proce- of 23 May 1995 the Customs Office dis- dure in question" ? missed the applicant's appeal and refused the application for repayment; by decision of 12 May 1997 it dismissed the applicant's appeal against that refusal.

by a now unappealable decision of effect on the correct operation of the the customs authority? temporary storage or customs proce- dure in question" where such treatment or use is assigned to the goods after the time-limit has expired and an extension of the time allowed for such assign- (b) Is it permissible for an application ment would not have been justified for an extension to relate not to under Article 49(2) of the Customs declarations to be listed individu- Code? ally but instead globally to all declarations to be made within a given period (in this case, several months), where reference is made, by way of justification, to special 4. If Question 2(b) or Question 3 is to be problems existing during that per- answered in the negative: iod in the applicant's business (for example, the fact that employees have suddenly fallen ill or have been absent on leave, the induction of new employees, problems with Is Article 900(1 )(o) of the implement- the application of a data processing ing regulation, as inserted by Arti- system developed for the purposes cle 1(29) of Commission Regulation of carrying out customs formalities (EC) No 3254/94 of 19 December or, in cases involving outward 1994 (OJ 1994 L 346, p. 1), concern- processing, the excessive work ing eligibility for preferential rates or involved in the preparation of Community treatment, also applicable attributions which should in fact to the grant of other forms of prefer- have been prepared by the customs ential tariff treatment? authorities), without obvious neg- ligence arising under the second indent of Article 859 of the imple- menting regulation? 5. If Question 4 is to be answered in the negative:

whether the conditions laid down in meaning of Article 239 of the Customs the second indent of Article 239(1) of Code where customs debts on importa- the Customs Code in conjunction with tion have been incurred under Arti- the first sentence of Article 905(1) of cle 204(1)(a) because, for reasons such the implementing regulation are ful- as those given by way of example in filled with regard to declarations for Question 2(b), there has been non- entry into free circulation in which compliance over a period of many valid movement certificates on Form months with the time-limit laid down EUR.1 or certificates of origin on Form in Article 49(1) of the Customs Code A have been produced, and where there and no circumstances justifying exten- exists the possibility of total or partial sions of time existed, with the result exemption from import duties of goods that there was also obvious negligence which have been re-imported following under the second indent of Article 859 outward processing (differential cus- of the implementing regulation?' toms clearance) or goods returned following repair?

15. Written observations have been sub- 6. Where the repayment criteria laid mitted by the parties to the main proceed- down in Article 900(1)(o) of the imple- ings, the German and the United Kingdom menting regulation are fulfilled, can it Governments and the Commission. The ordinarily be assumed that the person parties, the German Government and the concerned has not acted with any Commission were represented at the hear- fraudulent intent or in a manner which ing. is obviously negligent?

(b) 20 days from the date on which the summary declaration is lodged in the in cases other than those referred to in case of goods carried otherwise than by Article 203 unless it is established that sea. those failures have no significant effect on the correct operation of the temporary storage or customs procedure in question.'

2. Where circumstances so warrant, the customs authorities may set a shorter period or authorise an extension of the Article 203 refers to the unlawful removal periods referred to in paragraph 1. Such from customs supervision of goods liable to extension shall not, however, exceed the import duties. genuine requirements which are justified by the circumstances.'

18. Article 212a 1 9 provides: 17. Article 204(1) provides:

'Where customs legislation provides for 'A customs debt on importation shall be partial or total exemption from import or incurred through: export duties pursuant to Articles 181 to 187, such partial or total exemption shall also apply in cases where a customs debt is incurred pursuant to Articles 202 to 205, 210 or 211 where the behaviour of the declarant implies neither fraudulent dealing (a) non-fulfilment of one of the obligations nor manifest negligence and he produces arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs 19 — Inserted by Regulation (EC) No 82/97, cited in note 15.

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— resulting from circumstances in which no deception or obvious negligence may be attributed to the person con- cerned. The situations in which this provision may be applied and the 20. Article 249 provides: procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions. ' 1 . The provisions required for the imple- mentation of this Code, including imple- mentation of the Regulation referred to in Article 184, except for Title VIII and 2. Duties shall be repaid or remitted for the subject to Articles 9 and 10 of Council reasons set out in paragraph 1 upon Regulation (EEC) No 2658/87 21 and to submission of an application to the appro- paragraph 4, shall be adopted in accor- dance with the procedure laid down in paragraphs 2 and 3, in compliance with the 20 — It is clear from the text of the common position adopted by the Council on 28 May 1996 (OJ 1996 C 248, p. 1) and from the French and German versions of Regulation No 82/97 that the reference to Articles 181 to 187 should be to Articles 184 to 187. 21 — OJ 1987 L 256, p. 1.

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international commitments entered into by 4. The provisions necessary for implement- the Community. ing Articles 11, 12 and 21 shall be adopted by the procedure referred to in Article 10 of Regulation (EEC) No 2658/87.'

2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a 21. Article 859 of the implementing regu- time-limit which the chairman may lay lation 22provides: down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the 'The following failures shall be considered representatives of the Member States to have no significant effect on the correct within the committee shall be weighted in operation of the temporary storage or the manner set out in that Article. The customs procedure in question within the chairman shall not vote. meaning of Article 204(1) of the Code, provided:

6. in the case of goods in temporary storage or placed under a customs procedure, removal of the goods from 2. in the case of goods placed under a the customs territory of the Commu- transit procedure, exceeding the time- nity or their entry into a free zone or limit for presentation of the goods to free warehouse without completion of the office of destination, where such the necessary formalities; presentation takes place later;

7. in the case of goods having received favourable tariff treatment by reason of their end-use, transfer of the goods 3. in the case of goods placed in tempo- without notification to the customs rary storage or under the customs authorities, before they have been put warehousing procedure, handling not to the intended use, provided that: authorised in advance by the customs authorities, provided such handling would have been authorised if applied for;

(a) the transfer is recorded in the transferor's stock records; and

4. in the case of goods placed under the temporary importation procedure, use of the goods otherwise than as provi- ded for in the authorisation, provided (b) the transferee is the holder of an such use would have been authorised authorisation for the goods in under that procedure if applied for; question;

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24. Article 900 of the implementing regu- repayment or remission under Arti- lation 23provides, in so far as is relevant: cle 239(2) of the Code has been submitted cannot take a decision on the basis of Article 899, but the application is sup- ported by evidence which might constitute a special situation resulting from circum- stances in which no deception or obvious '1. Import duties shall be repaid or remitted negligence may be attributed to the person where: concerned, the Member State to which this authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909.

The term "the person concerned" shall be (o) the customs debt has been incurred interpreted in the same way as in Arti- otherwise than under Article 201 of the cle 899. Code and the person concerned is able to produce a certificate of origin, a movement certificate, an internal Com- munity transit document or other appropriate document showing that if the imported goods had been entered In all other cases, the decision-making for free circulation they would have customs authority shall refuse the applica- been eligible for Community treatment tion.' or preferential tariff treatment, provi- ded the other conditions referred to in Article 890 were satisfied.'

25. Article 905(1) of the implementing reg- The first question ulation provides:

26. By its first question, the national court asks whether Article 859 of the implement- ' 1 . Where the decision-making customs ing regulation contains a validly constituted authority to which an application for and exhaustive set of rules on failures, within the meaning of Article 204(1 )(a) of the Customs: Code, which 'have no signifi- 23 — As inserted by Regulation No 3254/94, cited in note 17. cant effect on the correct operation of the

temporary storage or customs procedure in person concerned and that all the formal- question'. ities necessary to regularise the situation of the goods are subsequently carried out) and then exhaustively (see Article 860) lists nine specific failures to be considered to have no significant effect within the mean- ing of Article 204(1). It is argued that 27. It appears from the order for reference Article 859 accordingly goes beyond what that the national court was prompted to was necessary and lawful to implement refer this question because of reservations Article 204(1) since it restricts to specified expressed in German legal literature as to circumstances the scope of a derogation the validity of the exhaustive nature con- originally framed in general terms. ferred on Article 859 by Article 860. Those reservations are based on the view that the Customs Code confers no power to enact exhaustive rules governing the circum- stances in which failures are to be consid- ered to have no significant effect on the correct operation of the temporary storage or customs procedure in question. The national court, the applicant and the Ger- 29. The applicant moreover submits that man Government share those reservations, Article 249 of the Code simply regulates and put forward a number of arguments in the procedure to be followed for the support of their view. adoption of implementing provisions with- out conferring any competence to that effect. The German Government adds that, if the Council had intended Article 249 to be the basis of competence to adopt implementing provisions, numerous speci- 28. Those arguments stem essentially from fic provisions throughout the Code which the perception that Article 859 redefines confer power on the Commission to adopt the contours of the derogation in Arti- implementing provisions (for example Arti- cle 204: while Article 204 simply provides cles 19, 30(3), 34, 35(3), 36(2), 76(1) and that a customs debt is not incurred in the 94(2) and (3)) would be superfluous. circumstances spelt out in paragraph (l)(a) 2 4 where the failures have no signifi- cant effect on the correct operation of the temporary storage or customs procedure in question, Article 859 lays down three cumulative conditions for application of the derogation (that the failures neither constitute an attempt to remove the goods unlawfully from customs supervision nor 30. The national court and the applicant imply obvious negligence on the part of the conclude that only the Council could have adopted a provision such as Article 859 and that it should have been laid down in 24 — Non-fulfilment of one of the obligations arising from temporary storage or from the use of the relevant customs the Customs Code. The German Govern- procedure. ment submits that the Council, had it

32. First, the language of Article 249 is very broad: it is expressed to confer on the 34. The Court has moreover taken a broad Commission the power to adopt the 'provi- view of the Commission's implementing sions required for the implementation of' powers in analogous cases. In Zuckerfabrik the Code (with the exception of Title VIII, Franken, 26 for example, which concerned which concerns appeals) in accordance the Commission's power to adopt imple- with a prescribed procedure closely invol- menting legislation containing a definition ving the Customs Code Committee, set up of a critical process not found in the basic by Article 247. That the intention was to legislation, the Court stated that legislation confer broad implementing powers is more- providing for adoption by the Council of over confirmed by the preamble to the the general rules for implementation and Code, which states: adoption by the Commission in accordance with a committee procedure of the detailed rules for implementation:

'Whereas it is important to guarantee the 'must be understood as meaning that, in the uniform application of this Code and to exercise of its powers, the Commission is provide, to that end, for a Community authorised to adopt all the measures which procedure which enables the procedures for are necessary or appropriate for the imple- its implementation to be adopted within a suitable time; whereas a Customs Code 25 — Seventh recital. Committee should be set up in order to 26 — Case 121/83 Zuckerfabrik Franken v Hauptzollamt Würz- ensure close and effective cooperation burg [1984] ECR 2039.

That proposition has been confirmed by the Court in Netherlands v Commission 28 and Belgium and Germany v Commission. 29 36. That view is furthermore supported by Although all three cases concerned regula- the preamble to the Customs Code. As well tions adopted in the context of the common as the seventh recital, cited above, the agricultural policy, in my view the principle preamble states that 'in adopting the mea- expressed applies equally in the field of sures required to implement this Code, the customs legislation. utmost care must be taken to prevent any fraud or irregularity liable to affect adversely the General Budget of the Eur- opean Communities'. 31 I agree with the Commission that that objective necessitates the adoption of an exhaustive Community regulation of exceptions, enabling customs 35. As the Commission notes, the Council, authorities to give clear instructions at in Article 204 of the Code, did not retain customs posts throughout the Community. competence exhaustively to fix the cate- gories of failures, but left the Commission to determine whether and if so to what extent it was reasonable and necessary to adopt other provisions. It cannot be infer- red from the mere fact that the 'unless rule' in Article 204 is drafted in broad terms that the Commission was not competent to adopt more specific rules. On the contrary, 37. As for the argument that the several given the need for legal certainty and specific implementing powers scattered uniform interpretation the converse in my throughout the Code would be superfluous view holds, and the general wording of the were Article 249 to be construed as a provision should be regarded as leaving it general implementing power, the logical open to the Commission to do so. 30 I conclusion of such a view would be that accordingly share the Commission's view none of the Code's 253 articles other than the handful of specific provisions men- tioned by the German Government could 27 — Paragraph 13 of the judgment. lawfully be implemented and that hence the 28 — Case C-478/93 [1995] ECR I-3081, paragraph 30 of the vast majority of the 915 articles of the judgment. implementing regulation were unlawful. 29 — Joined Cases C-9/95, C-23/95 and C-156/95 [1997] ECR I-645, paragraph 37 of the judgment. 30 — See for example Case C-240/90 Germany v Commission [1992] ECR I-5383, in particular paragraphs 42 and 43 of my Opinion and paragraphs 36 and 37 of the judgment. 31 — Eighth recital.

39. I would note finally on the first ques- tion a point made by the Commission both in its written observations and at the hearing, namely the significance of the requirement that implementing legislation be adopted by the Commission in accor- dance with the procedure prescribed by Article 249(2) and (3). That procedure 40. In answer to the national court's first requires the close involvement of the Cus- question I accordingly conclude that Arti- toms Code Committee, set up by Arti- cle 859 of the implementing regulation cle 247, which is composed of representa- contains a validly constituted and exhaus- tives of the Member States with a repre- tive set of rules on failures, within the sentative of the Commission as chairman. meaning of Article 204(1) of the Customs Article 249 requires the Commission to Code, which 'have no significant effect on

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the correct operation of the temporary ment of the goods to a customs-approved storage or customs procedure in question'. treatment or use where the time-limit would have been extended had an exten- sion been applied for in time is to be considered to have no significant effect on the correct operation of the temporary storage or customs procedure in question within the meaning of Article 204(1) of the Code. The second question

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of its own motion the criteria for the grant lodging the summary declaration where of such an extension. circumstances so warrant, provided that the extension does not 'exceed the genuine requirements which are justified by the circumstances'. 33 In addition, the national court asks whether applications must be made in respect of each declaration indivi- dually or whether a single application may be made seeking extension in relation to Question 2(b) numerous summary declarations.

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fication for extension of time is no longer the question referred are part of the daily limited to exceptional circumstances alone. routine of the undertaking concerned and must be dealt with on an ad hoc basis.

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munity is a party and to which it is required The third question to conform. It is for the national court to assess which circumstances may justify an extension in a particular case and how those circumstances may be proved.

54. The national court's third question, which arises only in the event that — contrary to my view — the first question is answered in the negative (so that Arti- cle 859 is regarded as invalid), asks whe- ther it must be assumed that the frequent failures to assign the goods a customs- approved treatment or use within 20 days 52. The additional question whether are to be considered to 'have no significant obvious negligence arises in the circum- effect on the correct operation of the stances of the question is thus no longer temporary storage or customs procedure relevant, since in my view there were in the in question' where such treatment or use is present case no extraordinary circum- assigned to the goods after the 20 days and stances such as to justify extension of time. an extension of the time would not have The issue of negligence is however explored been justified under Article 49(2). It further in the context of the national court's appears from the order for reference that final question. 37 the national court is of the view that, even where isolated failures of the type at issue would not have been considered to have a significant effect within the meaning of Article 204(1), the exception in that provi- sion cannot apply where the time-limits have been exceeded in numerous instances over the course of a year.

customs-approved treatment or use will would have been eligible for other forms of have a significant effect on the correct preferential tariff treatment. operation of the temporary storage or customs procedure in question. As indi- cated above, the effect is that the temporary storage procedure is being used in a similar way to a customs warehouse, without the authorisation or supervision which the legislation requires of such a use. Arti- 58. This question concerns the applicant's cle 204(1) provides that in such circum- alternative claim under Article 239 of the stances a customs debt is incurred. The Code for repayment of the duties levied. 'unless rule' is intended to enable a debt so Article 239, it will be recalled, provides incurred to be waived in the event of a that customs duties may be repaid or formal infringement which it is possible to remitted in situations 'resulting from cir- remedy. A case such as the present, how- cumstances in which no deception or ever, where an extension of time would not obvious negligence may be attributed to have been granted, does not involve a the person concerned'. The situations in formal infringement which it is possible to which Article 239 is to be applied are to be remedy. defined in accordance with the Committee procedure, and hence by way of the imple- menting regulation. Article 900 of that regulation lists a number of situations in which import duties are to be repaid or remitted, including, at (l)(o), where the customs debt has been incurred otherwise than under Article 201 of the Code and the person concerned is able to produce a certificate of origin, a movement certificate, an internal Community transit document or other appropriate document showing The fourth question that if the imported goods had been entered for free circulation they would have been eligible for Community treatment or pre- ferential tariff treatment, provided the other conditions referred to in Article 890 were satisfied.

61. Article 900(1)(o) was added to the implementing regulation by Regulation 62. It is clear from the wording of the No 3254/94, 38 the preamble to which legislation that Article 900(1)(o) applies states: only where it can be established that, if the goods had been released for free circulation, they would have been eligible for Community treatment or preferential tariff treatment. The fact that the goods might have benefited on release for free circulation from other reductions in or 'Whereas Article 890 of Regulation (EEC) exemptions from duty, such as those refer- No 2454/93 provides that duties may be red to by the applicant, does not bring the repaid or remitted on imports eligible for situation within the scope of Arti-

38 — Cited in note 17. 39 — Fourteenth and fifteenth recitals.

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cle 900(l)(o). The applicant's argument Article 239(1) (Article 13 of Council Reg- accordingly fails. ulation (EEC) No 1430/79 41), that, while the Community legislation does not prevent the customs authorities — and by exten- sion the national courts — from checking in all cases that the circumstances relied on in an application for repayment or remis- 63. I accordingly conclude that Arti- sion do not fall within any other provision, cle 900(l)(o) of the implementing regula- neither does it require such checking. 42 tion is not applicable where the goods The existence and extent of any obligation would have been eligible for forms of to examine whether grounds for repayment preferential tariff treatment other than other than that expressly relied on are those expressly mentioned in that provi- governed by national law. sion.

68. Article 899 of the implementing regu- lation provides that where the relevant customs authority establishes 'that an application for repayment ... under Arti- 70. I accordingly conclude that, where the cle 239(2) of the Code ... is based on repayment criteria laid down in Arti- grounds corresponding to one of the cir- cle 900(1)(o) of the implementing regula- cumstances referred to in Articles 900 to tion are fulfilled, it cannot be assumed that 903, and that these do not result from the person concerned has not acted with deception or obvious negligence on the part any fraudulent intent or in a manner which of the person concerned, it shall repay' the is obviously negligent. duties concerned. The applicant argues that the condition requiring there to have been no deception or obvious negligence on the part of the person concerned is generally fulfilled in cases covered by Article 900, including those, such as (in its view) the present case, falling within Arti- cle 900(1)(o). The seventh question

72. It appears from the order for reference that the national court was prompted to put this question because of minor lingui- stic differences in the concepts of negligence used in the provisions relating to repayment and remission of customs duties (Arti- cle 239 of the Code and Articles 899 and 905 of the implementing regulation) and in 73. The Commission in its written obser- the provisions relating to the incurring of a vations has undertaken an exhaustive customs debt (Article 859 of the imple- review of all the language versions of the menting regulation). Although in the Eng- legislation. The principal conclusion to be lish and French versions of the Code and drawn from that review is that the terms the implementing regulation the same used display no coherent pattern. As seen terms, 'obvious negligence' and 'négligence above, the French version makes do with manifeste', are used in all those provisions, one term in all five provisions; so do the the German version uses slightly different Danish, Italian, Portuguese and Spanish terms: Articles 239, 899 and 905 use the versions. The English version uses two term 'offensichtliche Fahrlässigkeit' terms; the Finnish and Greek use three (obvious/manifest negligence) while Arti- (but not distributed in the same way); the cle 859 refers to 'grobe Fahrlässigkeit' Dutch and the Swedish hold the record (serious/grave negligence). Moreover in with four (similarly not distributed in the Article 212a, which extends the circum- same way). The only sensible conclusion is stances in which there may be exemption to my mind that no significant difference from customs duties by providing that between the various terms used was inten- exemption shall apply where, inter alia, ded by the legislator. To interpret the there is neither 'fraudulent dealing nor different terms in different senses would, manifest negligence', while the French is given the lack of any rhyme or reason in the again 'négligence manifeste' the German use of the terms in the different language uses yet another term, 'offenkundige Fahr- versions, seriously undermine the uniform lässigkeit' (obvious/manifest negligence). application of the legislation.

45 — Cited in note 41. 46 — Commission Regulation (EEC) No 3799/86 of 12 Decem- ber 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or 76. Thus the previous test for serious export duties, OJ 1986 L 352, p. 19. Regulation negligence required that the person con- No 3799/86 was repealed by Article 913 of the imple- menting regulation. cerned 'must have been aware of [the]

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existence' of the procedural requirements of those requirements, in the sense that a which in principle were a condition for the reasonable person in his business and granting of repayment or remission; the circumstances would have been aware of equivalent French and German verbs were them. It is in general for the national court 'ne pouvait ignorer' and 'Kenntnis haben to determine whether given conduct falls mußte'. In the absence of a specific defini- within the scope of the concept, although I tion of the current test of 'obvious negli- would add that I share the Commission's gence' in the context of the Customs Code I view that conduct such as that described in consider that that test will be satisfied if the the order for reference in the present case person concerned should have been aware manifestly amounts to obvious negligence.

Conclusion

77. I accordingly consider that the questions referred by the Finanzgericht, Bremen, should be answered as follows:

(ii) An application for an extension of time may relate to several declarations within a given period provided that the specific and extraordinary circumstances relied on relate to all the declarations concerned.

(4) Article 900(1 )(o) of the implementing regulation is not applicable where the goods would have been eligible for forms of preferential tariff treatment other than those expressly mentioned in that provision.

(5) Where a claim is made for repayment or remission of customs duties under Article 239(1) of the Customs Code, the customs authorities and courts are not required to examine of their own motion whether all relevant criteria for repayment are fulfilled.

(6) Where the repayment criteria laid down in Article 900(1 )(o) of the implementing regulation are fulfilled, it cannot be assumed that the person I - 7909

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concerned has not acted with any fraudulent intent or in a manner which is obviously negligent.