C-61/98

OPINION OF MR JACOBS — CASE C-61/98

OPINION OF ADVOCATE GENERAL JACOBS delivered on 11 March 1999 *

The question and its background offence or irregularity committed in con- nection with it.

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9. The Commission's decision — annexed to the Netherlands Government's observa- tions in the present case — is founded, essentially, on the considerations that De 'Is it to be assumed from rules of written or Haan was responsible for the proper con- unwritten Community customs law that, in duct of the customs procedure; that expo- their relations with those liable to pay sure to possible fraudulent acts is a normal customs duty, customs authorities are

1 — Council Regulation (EEC) No 2913/92 of 12 October 1992 3 — Council Regulation (EEC) No 1430/79 of 2 July 1979 on establishing the Community Customs Code, OJ 1992 the repayment or remission of import or export duties, L 302, p. 1. OJ 1979 L 175, p. 1, as amended by Council Regulation 2 — Commission Regulation (EEC) No 2454/93 of 2 July 1993 (EEC) No 3069/86 of 7 October 1986 amending Regula- laying down provisions for the implementation of Regula- tion No 1430/79, OJ 1986 L 286, p. 1 (see paragraph 24 tion No 2913/92, OJ 1993 L 253, p. 1. below).

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under an obligation such as that described arose in 1993; the notice to pay duty, on in paragraph 6.2 above [that of warning a the other hand, was not issued until 13 July declarant in the position of the applicant, 1994. Which is the legislation to be exam- whose declarations are established as hav- ined when answering the national court's ing been made in good faith, within an question as to the existence of a rule of available period of approximately 10 days, written Community law — the present against possible fraud] and, if so, what are Customs Code or the previous regulations ? the legal consequences, as regards assess- ment, entry in the accounts and collection of the customs debt, if the authorities fail to comply with that obligation?'

13. In its reply to a written question put by the Court before the hearing, however, the Commission took the view that, since the The applicable legislation relevant facts occurred before the Customs Code applied, the provisions applicable are those of the previous legislation — which, however, do not materially differ from 11. The Customs Code 4 and its imple- those of the Customs Code as far as this menting provisions (Regulation case is concerned. No 2454/93, 5as amended by Regulation No 3665/93 6) became applicable on 1 Jan- uary 1994, essentially codifying and repeal- ing the many customs regulations pre- viously in force. Neither the Code nor the implementing regulation contains any tran- 14. That view is supported by the Court's sitional provisions. In the present case, the consistent case-law to the effect that pro- frauds took place and the customs debt cedural rules apply to all proceedings pending at the time when they enter into force whereas substantive rules do not in 4 — Regulation No 2913/92, cited in note 1. general apply to situations existing before 5 — Cited in note 2. their entry into force unless there is some 6 — Commission Regulation (EC) No 3665/93 of 21 December 1993 amending Regulation No 2454/93, OJ 1993 L 335, clear indication to the contrary. That p. 1. approach is required by the principles of

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legal certainty and the protection of legit­ procedure. Article 10 provides, inter imate expectations. 7 alia:

15. I agree that the substantive rules to be '1. All goods which are to be carried under interpreted in the present case are those not the procedure for external Community of the Customs Code but of the previous transit shall be the subject of a T l declara­ legislation. All the purely procedural tion... aspects following from the notice to pay issued in July 1994 must, however, be governed by the Customs Code and its implementing rules. That view is fully consistent with both the case-law and the principle that legislation is not to be applied retroactively unless such applica­ tion is specifically provided for. It was, moreover, accepted by all the parties who submitted observations at the hearing. 4. The T l declaration shall be signed by the principal...

(c) payment of duties and any other charges due as a result of an offence or irregularity committed in the course '1. A customs debt on importation shall be of or in connection with a Community incurred by: transit operation.'

1 9 . A r t i c l e 4 9 ( 1 ) of Regulation No 1214/92 9 provides:

' 1 . Where a consignment has not been presented at the office of destination and the place where the offence or irregularity occurred cannot be established, the office (d) the non-fulfilment of one of the obliga- of departure shall notify the principal of tions arising... from the use of the this fact as soon as possible and in any case customs procedure under which [goods before the end of the 11th month following liable to import duties] are placed, or the date of registration of the Community non-compliance with a condition to transit declaration.' which the placing of the goods under that procedure is subject...

20. As regards incurrence of a customs debt, Article 2 of Regulation No 2144/87 10

...’ 9 — Commission Regulation (EEC) No 1214/92 of 21 April 1992 on provisions for the implementation of the Commu- nity transit procedure and for certain simplifications of that procedure, OJ 1992 L 132, p. 1. 11 — Council Regulation (EEC) No 4108/88 of 21 December 10 — Council Regulation (EEC) No 2144/87 of 13 July 1987 on 1988 amending Regulation No 2144/87, OJ 1988 L 361, customs debt, OJ 1987 L 201, p. 15. p. 2.

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2 1 . As regards entry in the accounts of customs duty, Article 3(3) of Regulation No 1854/89 12 provides: Under Article 6(1) of the same regulation:

'In the case of a customs debt which arises under conditions other than those referred to in paragraph 1,' — and the situation with which the present case is concerned is not referred to there — ‘entry in the ‘As soon as it has been entered in the accounts, the amount of duty shall be 12 — Council Regulation (EEC) No 1854/89 of 14 June 1989 communicated to the person liable for its on the entry in the accounts and terms of payment of the amounts of the import duties or export duties resulting payment, in accordance with the appropri- from a customs debt, OJ 1989 L 186, p. 1. ate procedures.'

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22. With regard to the recovery of import 24. First, Article 13 of Regulation duties, Article 2(1) of Regulation No 1430/79, as amended by Regulation No 1697179 13 provides: No 3069/86, 14provides:

' 1 . Import duties may be repaid or remitted 'Where the competent authorities find that in special situations other than those refer- all or part of the amount of import duties... red to in Sections A to D, which result from legally due... has not been required of the circumstances in which no deception or person liable for payment, they shall take obvious negligence may be attributed to the action to recover the duties not collected. person concerned.

…' 23. As regards possible exemptions from the obligation to pay a customs debt, two provisions allow for situations in which import duties need not be levied. One concerns cases where duty entered in the accounts may be repaid (or remitted if not yet collected), the other covers situations in (The situations referred to in Sections A to which it is possible to waive recovery of D are those in which duty must be repaid or duty which should have been collected but remitted. Sections A to C cover cases where has not. there is no customs debt or the amount fixed is higher than that lawfully due, where goods are entered in error for free 13 — Council Regulation (EEC) No 1697/79 of 24 July 1979 on circulation or where they are refused by the the post-clearance recovery of import duties or export importer as defective or non-compliant. 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, OJ 1979 L 197, p. 1 (as amended by Regulation No 1854/89, though the amendment is not relevant here). 14 — Both cited in note 3.

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2 7 . R e g u l a t i o n s N o 3 7 9 9 / 8 6 and 'The competent authorities may refrain No 2164/91 do, however, contain a num- from taking action for the post-clearance ber of what I consider to be substantive recovery of import duties or export duties provisions concerning cases in which cus- which were not collected as a result of an toms authorities are themselves to repay, error made by the competent authorities remit or waive recovery of duty. Article 4 themselves which could not reasonably of Regulation No 3799/86 lists a number have been detected by the person liable, of 'special situations' for the purposes of the latter having for his part acted in good Article 13(1) of Regulation No 1430/79. faith and observed all the provisions laid They include cases where the goods are down by the rules in force as far as his stolen and then recovered, where goods are customs declaration is concerned. inadvertently and temporarily withdrawn from a customs procedure, where opening mechanisms on means of transport cannot be operated, where goods are returned to a non-Community supplier or are re- exported, and where their marketing is prohibited by court order. Article 2 of

The cases in which the first subparagraph can be applied shall be determined in 16 — Commission Regulation (EEC) No 3799/86 of 12 Decem- ber 1986 laying down provisions for the implementation of accordance with... implementing provi- Articles 4a, 6a, 11a and 13 of Regulation No 1430/79, OJ 1986 L 352, p. 19. sions...' 17 — Commission Regulation (EEC) No 2164/91 of 23 July 1991 laying down provisions for the implementation of Article 5(2) of Regulation No 1697/79, OJ 1991 L 201, p. 16. 15 — Cited in note 13. 18 — Cited in note 2.

(b) subsequently, before an independent body, which may be a judicial authority 28. Where it is not possible for the compe- or an equivalent specialised body, tent authority of a Member State to deter- according to the provisions in force in mine, on that basis, whether the conditions the Member States.' laid down in those articles are met, it is to submit the case to the Commission, which is to decide on the matter after consulting a group of experts composed of representa- tives of all Member States. 19 No equivalent procedure was specifically provided for in the previous Community customs legislation, although such proce- dures were available under national law. It 29. Finally, Articles 243 to 246 of the appears that the right specified in Arti- Customs Code provide for an appeal pro- cle 243 of the Customs Code is embodied cedure, to be implemented by the Member in the Netherlands in the Algemene Wet States. Under Article 243: Bestuursrecht and the Algemene Wet inzake Rijksbelastingen.

' 1 . Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and The relationship between the two sets of which concern him directly and individu- proceedings ally.

30. De Haan has initiated two parallel sets of proceedings with a view to gaining exemption from the claim for import duty, both commenced following receipt of the notice to pay in July 1994, and thus, as I 19 — Articles 871 to 876 and 905 to 909 of Regulation have said above, governed procedurally by No 2454/93. the Customs Code and its implementing

provisions. One is an appeal against the take a decision favourable to the putative notice to pay, made first to the customs customs debtor, either the case is to be authorities themselves and subsequently to submitted to the Commission for it to take the Tariefcommissie, as provided for in a decision — which may then be challenged Article 243 of the Customs Code, which before the Court of Justice or the Court of has led to the present request for a pre- First Instance as the case may be — or liminary ruling. The second took the form (although this amounts merely to a con- of an application to the customs authorities firmation in Community law of a presum- under Article 239(2) of the Customs Code ably pre-existing right under national law) for remission of the duty pursuant to there is a general right of appeal under Article 239(1), which substantially which a decision of the customs authorities reenacted Article 13(1) of Regulation may be reviewed by the national authorities No 1430/79. That application was forwar- and courts — and thus, where the case ded to the Commission by the Netherlands comes before a national court, the possibi- Government in accordance with Arti- lity of a request for a preliminary ruling by cle 905(1) of Regulation No 2454/93 and the Court of Justice. led to the Commission's decision of 18 Feb- ruary 1998 that the circumstances did not amount to a special situation within the meaning of Article 13(1) of Regulation No 1430/79, which has been challenged in Cases C-157/98 and T-150/98. 33. It is clear that such a right of appeal to the national courts is a right to judicial review of a decision taken by the customs authorities. Where those authorities have taken the decision to submit a case to the Commission under Article 13(1) of Regu- 31. There has been some discussion before lation No 1430/79 — as has been done the Court as to whether the customs here — that is the only decision which can authorities' failure to inform De Haan of be examined by the national courts, since their suspicions could constitute a special the Commission's decision can be reviewed situation within the meaning of Arti- only by the Community judicature. Here, cle 13(1) of Regulation No 1430/79. How- there is no suggestion that the Tariefcom- ever, it seems to me that this question falls missie has been asked to review the Nether- outside the scope of the present case and is lands customs authorities' decision to sub- to be dealt with in the context of Cases mit the case to the Commission. C-157/98 and T-150/98.

No 1430/79 and that the Court should different question 'May a transit principal reserve its consideration of that question be exempted from paying duty where for its judgment in Case C-157/98. In any customs authorities do not inform him of event, the Tariefcommissie, in its order for a suspected fraud in which he is not reference, makes no mention of Arti- implicated but as a result of which he cle 13(1) of Regulation No 1430/79 or of may incur a customs debt?' its equivalent in the Customs Code but only of Article 220(2)(b) of that Code, the re- enactment of Article 5(2) of Regulation No 1697/79. Nor does Article 13(1) or its equivalent appear to have been referred to by De Haan in its written pleadings before the Tariefcommissie, appended to the order 36. It is clearly for the national court to for reference. In the present case, that determine the form of question which it is provision seems to have been raised only most appropriate to answer in order to in the observations submitted to this Court, settle the dispute before it. In the present principally by the Netherlands and United case, De Haan has indicated that the Kingdom Governments. Accordingly, I manner in which the question has been shall not address the 'special situation' posed bears a relation to a national rule directly. concerning the collection of taxes. How- ever, it seems to me that what the national court really wishes to know is whether, under Community law, there are any cir- cumstances, deriving from the customs authorities' failure to inform De Haan, in which De Haan may be exempted from having to pay the customs duties in ques- tion, and I feel that — subject to my proviso concerning Article 13(1) of Regu- lation No 1430/79 — the question may Analysis of the question legitimately be examined in that slightly wider context.

38. Those rules, taken together, form a coherent system requiring recovery of the customs debt which arose in the present case. The only exceptions to that require- ment are provided for in Article 13(1) of Regulation No 1430/79 and Article 5(2) of Regulation No 1697/79. Since specific exceptions have been laid down by the legislature, it is not appropriate for the Court to add to those exceptions, although it should obviously indicate, where required, the general principles of Commu- 41. Moreover, in the present case De Haan nity law which must apply to their inter- was a customs agent acting in that capacity. pretation. The profession of customs agent is not one which is regulated at Community level, although at the relevant time Regulation No 3632/85 23 laid down provisions stipu- lating that it must be possible for a customs declaration to be made by one person on behalf of another, but essentially leaving the regulation of the profession of provid- 39. When considering such exceptions, I ing such services to the Member States. In a think it useful to bear in mind the nature of number of Member States the profession is De Haan's responsibility.

23 — Council Regulation (EEC) No 3632/85 of 12 December 1985 defining the conditions under which a person may be 21 — See paragraph 18 above. permitted to make a customs declaration, OJ 1985 L 350, 22 — See paragraph 22 above. p. 1.

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24 — In the Netherlands, the profession of customs agent (douane-expediteur) is regulated by Articles 30 to 34 of the Douanewet. Under Article 3 1 , they have an exclusive right of indirect representation as referred to in Article 5 of the Customs Code. In accordance with Articles 32 and 32a, the agent is responsible for duties himself, but has a preferential claim against his principal to recover them. 25 — Joined Cases 98/83 and 230/83 Van Gend 8c Loos v Commission [1984] ECR 3763, paragraph 16 of the judgment. 26 — See Article 12 of the Customs Code. 45. The basic provision to be examined 27 — See, for example, Articles 206 ('no customs debt on here, therefore, is Article 5(2) of Regula- importation shall be deemed to be incurred... where the person concerned proves that the non-fulfilment of the tion No 1697/79. Under it, customs autho- obligations which arise from... the use of the customs rities may refrain from effecting post-clear- procedure under which the goods have been placed, results from the total destruction or irretrievable loss of the said ance recovery of duties which were not goods as a result of the actual nature of the goods or unforeseeable circumstances or force majeure, or as a collected as a result of an error made by the consequence of authorisation by the customs authorities') competent authorities themselves, in a and 233 ('a customs debt shall be extinguished... (c) where... the goods, before their release, are... destroyed or situation where the person liable could irretrievably lost as a result of their actual nature or of not reasonably have detected that error, unforeseeable circumstances or force majeure') of the Customs Code. had acted in good faith and had complied

48. The failure to inform De Haan of the suspected fraud thus cannot constitute an error within the meaning of Article 5(2) of Regulation No 1697/79. However, the national court's question refers to a possi- 47. The national court's question is direc- ble obligation to inform — within a certain ted specifically at the hypothesis that the period — in general terms, and not with customs authorities' failure to inform De reference to any specific provision. I must Haan of their suspicions and investigations therefore also consider the other possibili- may in some way lead to De Haan's ties which have been put forward. exoneration from liability for the customs duty. In that context, I find it hard to consider that such conduct — which seems to have been deliberate — can constitute an 'error' for the purposes of Article 5(2) of Regulation No 1697/79. The notion of error for those purposes has been held by 49. A number of suggestions have been the Court to include not only errors of made as to specific time-limits laid down by calculation or copying (which are specifi- Community law within which the customs cally cited, along with the use of inaccurate authorities could have been under an or incomplete information, as examples in obligation to inform De Haan of its liability the preamble to Regulation No 1697/79) for a customs debt. De Haan argues that but also misinterpretation or misapplica- under Articles 3(3) and 6(1) of Regulation tion of the relevant rules of law. 28 Whilst No 1854/89, 29 read together, duty must be the instances of error cited in the regulation entered in the accounts within two days of and the case-law clearly do not constitute the date on which the customs authorities an exhaustive list, I consider it would be are able to calculate its amount and deter- mine the person liable for payment, and 28 — See, for example. Case C-348/89 Mecanarte-Metalúrgica da Lagoa ν Alfândega do Porto [1991] ECR I-3277, paragraph 20. 29 — See paragraph 21 above.

that amount must be communicated to the context of making available own person liable as soon as entry has taken resources...'. 32 place. Since the authorities were in a position to calculate the amount of duty for which De Haan was liable in respect of the first consignment as soon as they knew of the fraudulent misappropriation, they should have notified it within two days. 51. Further light is cast on that ruling by the Opinion of Advocate General Fennelly in that case, in which he stated: 33 'It is clear that the time-limits in these provisions relate to the entry in accounts and not to the recovery of the sums in question and were laid down for accounting purposes rather than in order to create rights for individual traders. This, I think, is demon- strated conclusively by the existence of a distinct time-limit of three years for post- 50. I do not think De Haan can derive any clearance recovery in Article 2(1) of [Reg- benefit from that reasoning. As was pointed ulation No 1697/79] and, in particular, by out at the hearing, the Court recently held, the fact that provision is made for this time- in Covita, 30 that 'failure to observe the limit to run either from the date of entry of time-limits laid down in Articles 3 and 5 the customs debt in the accounts or, where of... Regulation... No 1854/89... does not this is not done, from the date that the nullify the right of competent customs customs debt was incurred. Article 2(1) authorities to proceed with the post-clear- provides the only limitation period for the ance recovery of customs duties, provided post-clearance recovery of customs debts.' that it is carried out within the time-limit [of three years within which post-clearance recovery must be effected] laid down in Article 2(1) of Regulation No 1697/79'. 31 In the grounds of its judgment, it stated that '[t]he sole purpose of [those] time- limits... is to ensure rapid and uniform application by the competent administra- 52. De Haan has cited the second recital in tive authorities of the technical procedures the preamble to Regulation No 1854/89 — for the entry in the accounts of amounts of 'the rules on entry in the accounts and import or export duties. Failure by the terms of payment of customs debt are of customs authorities to observe those time- particular importance for... ensuring the limits may give rise to the payment of optimum degree of equal treatment of interest in respect of delay by the Member traders in the collection of import and State concerned to the Communities, in the export duties' — in support of its view that persons liable for payment do derive rights

56. However, that obligation could not arise until entry in the accounts was actually effected and if it did arise — a 54. However, it seems to me that Arti- matter which can only be established by the cle 6(1) of that regulation 34 — a provision national court — I still do not think that failure to comply with it can free De Haan from liability for the duty. Although the 34 — See paragraph 21 above. Court did not look at Article 6(1) of

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the Tariefcommissie to warn a customs applicable at the time of the sending of the agent of a possible fraud by his customers. consignments in question on the basis of which the customs authorities might have been under an obligation to inform De Haan. I consider, for the reasons I have given, that they imposed no obligation such that a failure to comply with it could free De Haan from liability for the duty.

36 — As is made clear in Article 49(2): 'The notification referred to in paragraph 1 shall indicate, 64. At the hearing, De Haan invoked a in particular, the time-limit by which proof of the general principle to the effect, if I under- regularity of the transit operation or the place where the offence or irregularity was actually committed must be stood correctly, that the application of the furnished to the office of departure to the satisfaction of the customs authorities. law should not be allowed to give rise to That time-limit shall be three months from the date of the unfairness — that the scope of that appli- notification referred to in paragraph 1. If the said proof has not been produced by the end of that period, the cation is, so to speak, circumscribed by the competent Member State shall take steps to recover the duties and other charges involved. In cases where that Member State is not the one in which the office of departure is located, the latter shall immediately inform the said Member State.' 37 — See paragraph 38 above.

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dividing line between what is fair and 66. There is, it is true, case-law to the effect equitable and what is unfair or inequitable. that national rules of equity may be applied to waive the collection of Community levies where Community law, including its general principles, does not contain com- mon rules in that respect, provided that those national rules are reconciled with the requirement of uniform application of Community law so as to avoid unequal treatment of economic operators and do not have the effect of making it virtually impossible to implement Community legis- lation. 40

38 — See, for example, Case C-174/89 Hoche v BALM [1990) ECR I-2681, paragraph 31 of the judgment ('there is no 40 — See, for example, Case C-290/91 Peter v Hauptzollamt such thing as a general principle of objective unfairness Regensburg [1993] ECR 1-2981, paragraph 8 of the under Community law'), and the case-law cited there. judgment. 39 — CLECAT (European Liaison Committee of Freight For- 41 — See Articles 222 to 232 of the Customs Code, previously warders), in Annex I to the Commission's 'Interim Report Articles 8 to 18 of Regulation No 1854/89, cited in note on Transit' — a working document issued in October 12. 1996. 42 — Article 232 of the Customs Code.

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69. This is not to say that its appeals to fairness may go unheeded. On the contrary, they may be dealt with very adequately on the basis of the principle of proportionality, to which all the parties which have sub­ 71. In my Opinion in Peter, 44 I suggested mitted observations to the Court have quite that the situations in which repayment or rightly made reference. remission was to be made under Regulation No 1430/79 constituted a series of 'equity clauses'. The Court has very recently taken the same view in its judgment in the Trans- Ex-Import case, 45 describing Article 905 of Regulation No 2454/93 — the provision 70. However, that principle is to be applied now laying down the requirement that a here in the context of the customs legisla­ case of doubt must be submitted to the tion in which it is inherent rather than Commission for a decision on whether a independently, at a higher level. In particu­ 'special situation' exists — as containing a lar, it may be relevant to the question of the 'general equity clause'. To the extent, then, existence of a 'special situation' within the that equity or the principle of proportion­ meaning of Article 13(1) of Regulation ality are to be taken into account in No 1430/79. In this, I agree with the assessing De Haan's situation in the broad approach taken by the United Kingdom perspective, it is in the context of Arti- Government at the hearing. That provision

44 — Cited in note 40; see paragraph 16 of my Opinion. 43 — Cf. the judgment in Peter, cited in note 40, paragraphs 11 45 — Case C-86/97 Woltmann, trading as 'Trans-Ex-Import' ν and 14. Hauptzollamt Potsdam [1999] ECR I-1041, paragraph 18.

47 — Paragraphs 30 and 32 of the judgment, respectively. 46 — Cited in note 30. 48 — Cited in note 16.

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Conclusion

76. I therefore conclude that the Court should give the following answer to the Tariefcommissie in the present case:

Where customs authorities have reason to believe that a fraud will be committed in the context of an external transit procedure, there is no rule of Community law requiring them to warn any person that he may become liable for customs duties as a result of the fraud, whether that person is acting in good faith or not. In particular, a decision to refrain from doing so in order to ensure the identification and conviction of the perpetrators of the fraud, whilst it may be an element to be taken into account in applying the equitable rule embodied in Article 13(1) of Regulation No 1430/79, does not constitute an 'error made by the competent authorities themselves' within the meaning of Article 5(2) of Regulation No 1697/79.