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(3) (a) The price actually paid or payable is the total payment made or to be made by the buyer to or for the 3. Article 5 of Council Regulation (EEC) * Original language: French. No 1697/79 of 24 July 1979 on the post- 1 — OJ 1980 L 134, p. 1. clearance recovery of import duties or 2 — OJ 1980 L 333, p. 1. export duties which have not been required I - 8992

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of the person liable for payment on goods (EEC) No 3069/86 of 7 October 1986, 5 entered for a customs procedure involving provides: the obligation to pay such duties, 3 pro- vides:

'(1) Import duties may be repaid or remit- ted in special situations other than those referred to in sections A to D, which result '(1) ... from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

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Facts and issues in the main proceedings 10. On a previous inspection at Sommer's offices, the customs authorities had raised no objection to this practice. Following a later inspection by the customs authorities in 1992, the defendant in the main pro- 6. The plaintiff in the main proceedings, ceedings, the Hauptzollamt (Main Customs Hans Sommer GmbH & Co. KG (herein- Office) Bremen, Germany (hereinafter 'the after 'Sommer') had, before it had been HZA') decided that the flat-rate charges cleared through customs, bought honey invoiced under the supplementary agree- coming from the former USSR from Kessler ments should be included as an element of &C C o . Agrarproduckten-Handelsge- the price for the purposes of customs sellschaft mbH (hereinafter 'Kessler'). valuation. By an amended demand dated 29 July 1992, the HZA required payment by Sommer of DEM 96 352.77 by way of customs duties on importations made between 1989 and 1991.

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the Commission on the interpretation of clearance recovery and remission. The Article 13(1) of Regulation No 1430/79. Finanzgericht Bremen therefore decided to stay proceedings and to refer the following four questions to the Court of Justice for a preliminary ruling:

13. In Decision C(95) 2325 dated 28 Sep- tember 1995, the Commission stated that the repayment of import duties was not justified in the absence of a special situation '(1) Does the transaction value, within the within the meaning of the said article, and meaning of Article 3(1) of Council that it had been established that Sommer's Regulation (EEC) No 1224/80 of conduct had shown obvious negligence. 28 May 1980 on the valuation of goods for customs purposes (OJ 1980 L 134, p. 1,) as amended by Council Regulation (EEC) No 3193/80 of 8 December 1980 (OJ 1980 L 333, p. 1), of consignments of honey imported from 1989 to 1991 from the 14. By decisions dated 20 February 1996, USSR include the "expenses" (Spesen) the HZA rejected the objections lodged by or the "costs of completing the trans- Sommer against the four post-clearance action" (Abwicklungskosten), which recovery demands of 29 April, 26 August the German importer invoices to the and 9 September 1992, and also against a purchaser on the basis of separate fifth demand of the same kind dated contractual agreements, if the importer 2 December 1994. is obliged to take samples after impor- tation in order to establish the quality of the honey in accordance with the applicable German regulations and to supply the chemical results of those analyses?

18. Sommer adds that it could itself have purchased the services in question from (4) If Question 3 is answered in the transport and warehouse undertakings and negative: from food chemists. That is, moreover, what it had done until 1984, and the authorities then had always accepted the c.i.f. Hamburg price as constituting the customs value. Do the circumstances described in Question 3 amount to a special situa- tion within the meaning of Article 13 of Regulation No 1430/79 justifying the remission of duties?' 19. Sommer emphasises, furthermore, that even if it is accepted that Kessler is contractually bound to provide certificates showing that the delivered honey complies with the German Honigverordnung (Honey Regulation), it does not follow that Som- mer could not simply take delivery of it The first question c.i.f. Hamburg. If the analysis — which follows sampling which could be done equally well before or after customs clear- ance — shows lack of conformity, the 16. Both the Commission and the referring honey could always be returned or the court consider that the expenses of the price reduced on the basis of the usual analyses at issue should be included in the warranties relating to defects. It would in customs value. By contrast, Sommer no case be necessary to determine the

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product's compliance before the delivery 23. That provision is rightly directed at takes place. ensuring that only costs incurred up to the point of introduction of goods into the customs territory of the Community are taken into account. By contrast, costs arising subsequently, for other services relating to the goods, are to be excluded from the transaction value.

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vided for in the sale contract by reference to goods by the buyer to the seller or by the a 'detailed analysis made by the seller in buyer to a third party to satisfy an obliga- accordance with the applicable German tion of the seller'. legislation'. The contract moreover con- tains the following clause: 'other condi- tions: for a positive result from 10 samples per B/L (bill of lading) and subject to the outcome of corresponding analyses'. 29. In the context of contractual arrange- ments such as those in issue in the main proceedings, we are justified in examining the correct interpretation of this provision.

SOMMER

33. It does not seem to me to be established 36. Must it be concluded therefore that the beyond argument that the sale contract flat-rate payment at issue is not 'a condi- would necessarily be void if the buyer tion of sale' and that that sum is thus not refused to pay the flat-rate sum due for part of the customs value within the mean- the additional services provided to him by ing of Regulation No 1224/80? the seller, on the ground that he is dis- satisfied with any particular one of them, but nevertheless paid the price of the goods themselves. There would, of course, be a dispute as to payment of the flat-rate sum, but it is conceivable that the dispute would 37. Sommer relies for that argument on the not affect the validity of the transaction as decision in Van Houten, cited above, and a whole. contends that it is appropriate to treat the determination of quality, at issue in the present case, in the same way as that of quantity, which was at issue in Van Hou- ten. Clearly, however, in that case it was the buyer who, at his own expense, conducted the weighing out of the goods when they were received. In the present case, the 34. Uncertainty on that account is situation differs since the buyer entrusts increased still further if the following the carrying out of the analyses to the seller hypothesis is considered: suppose that the and pays the seller therefor. seller delivers the goods, receives the price for them and is also paid the flat-rate sum in dispute before it is established that the honey in question is unsaleable because it does not reach the standard required. In that case, it is clear that the buyer could 38. As we have seen, Sommer relies also on return the goods and obtain reimbursement the judgment in Wünsche, cited above, of their price. Is it just as clear that the which held that, by virtue of Article 3(1) of buyer could obtain reimbursement of the Regulation No 1224/80, 'payment for ser- flat-rate payment, bearing in mind that it is vices provided to the buyer on the purchase supposed to cover the cost of services, such of imported goods is not included in the as the transport and the analyses, which customs value of the goods'. 10 have in fact been provided?

40. The situation in the present case differs ticity of imported beef had to be included in fundamentally. Without the analyses, the the customs value of the goods. Those imported goods are of indeterminate qual- certificates, which Community regulations ity and their marketability is uncertain. By required if the meat was to be imported contrast, once it is accompanied by a without levy, fulfilled a function analogous certificate of conformity with the provi- to that fulfilled by the analyses now in sions of the Honigverordnung, the dispute, since they guaranteed that the imported honey clearly has added value goods complied with certain specifications. because its quality, and thus its market- There is thus a certain parallel with the ability, has become indisputable. present case, even though it is true that the Court based its decision on a ground different from that which I have just cited, since it justified its conclusion on the basis that the goods and the certificates were indissolubly linked. 41. It is this consideration which is deci- sive. It is settled case-law 11 that the objective of Regulation No 1224/80 is to guarantee the use of values for customs purposes which are neither fictitious nor arbitrary, but which on the contrary corre- spond to the economic reality of the 44. The flat-rate payments at issue do not transactions in question. cover the costs of analysis alone, but also the port dues and the costs of intra- Community transport. It may therefore be wondered whether the fact that the cost of the analyses is part of the customs value suffices to bring within it the whole of the 42. As we have seen, goods whose quality flat-rate payment. It should be noted that is certified by the seller have a greater even though the question addressed to the economic value than goods which do not Court refers to the flat-rate payments, it is possess such a certificate. It is this differ- none the less concerned specifically with ence which justifies taking into account, for the problem of the analyses. the purposes of customs valuation, the cost of paying to obtain this certification.

49. The Commission refers in this context The transaction value, within the meaning to the decision of the Court in TWO of Article 3(1) of Regulation No 1224/80, Textilwerke Deggendorf 14 (hereinafter as amended by Regulation No 3193/80, of 'TWD'), from which it is apparent that, if consignments of honey imported from the person concerned could resist the 1989 to 1991 from the USSR includes the implementation of a Decision of the Com- 'expenses' (Spesen) or 'costs of completing mission before a national court on the the transaction' (Abwicklungskosten), ground that it was illegal, that would which the German importer invoices to amount to permitting him to circumvent the purchaser on the basis of separate the definitive character which the Decision contractual agreements, where the importer acquires vis-à-vis him, after the expiry of is obliged to take samples after importation the time-limit for an action for its annul- in order to establish the quality of the ment. In other words, the preliminary honey in accordance with the applicable reference procedure should not be misused German legislation and to supply the as a substitute for an action for annulment chemical results of those analyses. which has not been brought. The definitive character of the Decision prevents any examination of its validity in the context of a reference for a preliminary ruling.

The second question 50. In the present case, it has been estab- lished as a result of questions addressed by the Court to the parties in the main 47. In the event of the Court giving an proceedings that the Commission's Deci- affirmative reply to the first question, the sion of 28 September 1995 was sent to referring court asks whether the Commis- sion Decision of 28 September 1995 is null and void. 14 — Case C-188/92 [1994] ECR I-833.

57. The position with regard to state aid differs in several respects from that in the 54. TWD concerned a Commission Deci- present case. Thus the need for legal sion addressed to the Federal Republic of certainty, which the Court held in TWD Germany finding that aids granted by that precluded the unlimited possibility of chal- Member State to the firm of Deggendorf lenging the validity of a Decision, is not had been made in breach of the provisions necessarily the same here. In the area of of Article 93(3) of the EC Treaty (now state aid the decision at issue is often of Article 88(3) EC) and were accordingly crucial importance not only for the under- unlawful. The Commission had requested taking to which the decision applies but the Federal Republic of Germany to seek also for its competitors. In relation to the repayment of the aid, which it had done. remission or repayment of duties, there is Deggendorf had then lodged an appeal no such impact. before the German courts against the administrative measure adopted by the national authorities in implementation of 15 — Case C-241/95 Accrington Beef and Others [1996] ECR I-6699, and Case C-408/95 Eurotunnel and Others 1997] the Commission's Decision. ECR I-6315.

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58. Moreover, a further argument relied 61. It is equally true that it is not stated in upon in support of the application of the the Foto-Frost judgment whether or not the rule in TWD is that where the author of the trader had, as in the present case, been contested measure has had to undertake informed of the decision adversely affecting complex economic evaluations, the proce- him and of the legal remedies available. But dure in a direct action, with its exchange of that consideration is not significant written pleadings, is more appropriate than because, in that judgment, the Court that of the preliminary ruling; that argu- accepted the admissibility of the request ment does not hold good in the present for a preliminary ruling without even case, since no evaluation of that kind is at considering whether the trader would have issue. been in a position to commence an action for annulment.

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ance recovery demands which had been about the remission of duties, at a time challenged by Sommer. Instead, the author- when it was seeking annulment of national ity referred the matter to the Federal decisions whose objective was different, Ministry of Finance which, on 27 March since they concerned post-clearance recov- 1995, asked the Commission whether the eries. A doubt could thus legitimately have duties should be remitted or reimbursed. arisen in Sommer's mind as to whether it could challenge that decision. That is even more the case in that it does not appear from the file that the national authorities had informed Sommer that they had brought the matter before the Commission, 66. The Commission decided on 28 Sep- or of the basis on which they had done so. tember 1995 that the repayment of import duties was not justified. The customs authority then, by four decisions dated 20 February 1996, rejected as unjustified the objections lodged against the duty demands.

70. Indeed, following the judgment of the Finanzgericht on 12 April 1994 holding 67. On 21 March 1996, that is to say after that post-clearance recovery should be the expiry of the time-limit laid down in discontinued, Sommer should have Article 173 of the Treaty, Sommer lodged expected a decision by the Commission on an appeal against the amended duty the basis of Regulation No 1697/79 (post- demands, in the version they took follow- clearance recovery), rather than one based ing the decisions on the objections. on Regulation No 1430/79 (remission and reimbursement).

72. Such would be the consequence of reply to the question put by the Court, applying the rule in TWD to this case. Sommer argues — rightly I think — that having regard to the amount in dispute, the costs of such further proceedings would be prohibitive. Sommer states that any party thinking in terms of cost-effectiveness would then be obliged to abandon the 73. In addition, it should be noted that in enforcement of its rights, which would the Court's recent judgment of 14 Septem- amount to a limitation on its right to be ber 1999 in Commission v AssiDomän heard. Sommer also explains why the costs Kraft Products and Others, 17 the Court of the preliminary ruling procedure are held that the rule in TWD is essentially markedly lower than those of a direct based on the consideration that the time- action. It adds that, by reason of the work limits for actions are intended to guarantee already undertaken by the national court, legal certainty by avoiding Community acts the parties can forgo an oral procedure which have legal effect being liable to be with much more confidence, so that they called into question indefinitely, and also avoid the expense of travelling to the on the requirements of good administration hearing. of justice and procedural economy (para- graph 61 of the judgment).

76. For the reasons set out above, I am unable therefore to accept the Commis- 74. However, in a case such as the present sion's argument that the rule in TWD is one, these same considerations of good applicable to this case. administration of justice and procedural economy ought to lead the Court not to demand of a plaintiff that it should com- mence an action before the Community judicature in addition to an appeal before the national court, if only because, bearing 77. It is thus necessary to examine the in mind the doubts which it was entitled to validity of the Commission's decision. As to have, the trader would then be led to that, the referring court sets out the follow- commence an action for annulment purely ing considerations. to safeguard its position.

82. Moreover, as the referring court cor- rectly states, it is relevant to recall that the 79. I accept this analysis, on which the Court, in its judgment in Technische Uni- Commission does not comment. versität München 21 concerning relief from customs duty on the import of a scientific apparatus, held that in the case of an administrative procedure which involves complex technical evaluations, the exis- tence of a discretion on the part of the 80. It is indeed apparent from the case-law Commission was inseparable from respect of the Court 18 that the rights of the defence for the guarantees conferred by the Com- must be respected in any procedure liable munity legal order, prominent among to culminate in a decision adversely affect- which is the right of an interested party to ing a person, even in the absence of specific present his point of view. procedural requirements. Respect for the rights of the defence is thus a precondition for the validity of decisions by the Com- mission in connection with the remission or repayment of import duties. 19 83. It is true that the application of Arti- cle 13 of Regulation No 1430/79 does not require complex technical evaluations by the Commission. But it is not the technical or non-technical character of the evalua- 81. It follows that the fact that the Com- tions which the Commission is called upon mission's decision in this case had been to undertake which seems to me to be taken before the amendment to the Com- decisive, but rather the existence itself of a munity Customs Code, by the addition of discretion. Article 906a 20 laying down rules of proce-

Court has on several occasions described as taken on the basis of a report from the a 'general equitable provision', 23 presup- Ministry of Finance, which the referring poses a degree of discretion on the part of court tells us expressed an opposite point of the Commission. The Commission must, in view to that of the plaintiff. particular, decide whether there is a 'special situation' within the meaning of the provi- sion which implies, as the Court of First Instance has observed, the identification and balancing of all the elements of fact and law relevant to the decision to be taken. 89. On the other hand, the referring court does not state that the plaintiff's arguments were communicated to the Commission. In fact, the Commission took its decision 85. The Commission must likewise estab- solely on the basis of the report mentioned lish whether there has been negligence, above and the previous judgment of the which must also be 'obvious', or 'decep- referring court. Although it may be sup- tion' on the part of the person concerned; it posed that a reading of the latter document is thus obliged to assess the conduct of the enabled the Commission to take into dutypayer. account some part of Summer's case, it must be borne in mind that that judgment was concerned with the validity of other post-clearance recovery demands. It is thus 86. It is all the more important that the not possible to conclude that the Commis- dutypayer should have had an effective sion could have been aware from that opportunity to make his views known. source of all the arguments that Sommer could have adduced in the context of the application for the remission or repayment of duties which, it should be noted, was made by the Ministry of Finance only after 87. It must however be observed that in the the judgment had been given. present case, as in the case of France- Aviation v Commission, cited above, the Commission reached the conclusion that there were grounds to attribute 'obvious negligence' to the dutypayer without, at any time, allowing him to make represen- tations. 90. It must therefore be concluded that the Decision of the Commission, which reaches the serious finding that the plaintiff was guilty of obvious negligence, was taken 88. It is apparent furthermore that the without that person being in a position to Commission's decision was essentially put forward his submissions effectively. The Decision must thus be declared invalid for infringement of the rights of the 23 — See, for example, the judgment in Case 283/82 Schoeller- shammer v Commission [1983] ECR 4219, at paragraph 7. defence.

93. On this point as well, I share the analysis of the referring court. It has to be said that the decision is composed essen- tially of a sequence of unreasoned asser- tions. 98. The Commission does not however explain how it reaches that conclusion, even though that is the whole question. The objective of the procedure is to permit the correct application of Article 13 of Regula- tion No 1430/79 to the instant case, which 94. In the first place, the Commission's presupposes a determination as to whether finding that the sums in issue were part of the factual circumstances described by the the customs value — a finding which the national authorities constitute a 'special referring court considers that it was not in situation' within the meaning of this provi- fact within the Commission's competence sion. But the Commission contents itself to make — could not in any event amount with the assertion, without more, that such to a reason for the rejection of remission or is not the case. repayment.

95. This finding implies that the duties were payable, which is a precondition for 99. It is thus not possible, by reading the the issue of remission or repayment to be decision, to ascertain the considerations considered, but one cannot draw from it upon which the Commission bases this any conclusion as to whether or not the interpretation of Article 13 of Regulation remission or repayment is justified. No 1430/79.

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100. Secondly, in a similarly terse and 104. The assertion by the Commission that peremptory assertion, the Commission there was Obvious negligence' on the part states that 'the legal situation created by of the trader cannot fail to bewilder. To the national court' cannot call into question support this serious reproach the decision the application of Community law and at issue mentions only the fact that the could not constitute a special situation amounts in question were not included in within the meaning of Article 13 of Reg- Summer's declaration, without even allud- ulation No 1430/79. Here also we do not ing to the question of its link with the find any reference to the reasoning on the outcome of the earlier inspection. basis of which the Commission reached this conclusion.

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Treaty and the case-law in relation to the The third question need for Community acts to be reasoned. It is settled case-law that the statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must disclose 112. The referring court states that, in spite clearly and unequivocally the reasoning of the Commission's view to the contrary, it followed by the adopting body in such a remains of the view that the conditions for way as to allow the persons concerned to the waiver of post-clearance recovery laid ascertain the reasons for the measure and to down in Article 5(2) of Regulation defend their rights and to enable the Court No 1697/79 were satisfied in this case. to exercise its review. 24

113. The national court considers, in effect, that Sommer was entitled to conclude from 109. However, the wording of the decision an earlier inspection that the costs in at issue permits neither the trader con- question did not form part of the customs cerned nor the Court, when exercising its value. It concludes, citing the case-law 25 of review, to determine on what basis the the Court, that the error of the administra- decision was made. tion could not 'reasonably have been detected', within the meaning of Arti- cle 5(2) of Regulation No 1697/79, by Sommer.

110. For this reason also, the Commission's decision must be declared invalid. 114. Sommer is of the same view as the referring court, and makes it clear that its new practice with regard to its customs declarations goes back to 1984. Before that date, Sommer took delivery of the honey c.i.f. Hamburg, warehoused it itself and 111. Consequently, I propose that the arranged for the taking of samples and for answer to the second question should be: the analyses. The sale contract was drawn in the same terms as in the present case, but the contract for supply of the services did not yet exist. The latter was concluded subsequently when it appeared that Kessler was able to offer these services to Sommer under more favourable conditions than Commission Decision C(95) 2325 dated those which Sommer had obtained pre- 28 September 1995 is invalid. viously.

117. The Commission, in the first place, stresses that in its opinion the question asked by the referring court is miscon- ceived. The Commission considers that it is 120. The national court asks, essentially, incorrect to state that it is not apparent that whether in the circumstances of this case the trader could have been in doubt as to Article 5(2) of Regulation No 1697/79 the precise outcome of the inspection. requires the national authorities to refrain According to the Commission, a prudent from post-clearance recovery: the subject of trader ought, on the contrary, to have the main proceedings is the appeal by realised that the administration had made Sommer against the decision of the national an error. The mere fact that the Customs authorities to proceed to such a recovery. did not, on the occasion of an inspection, object to Sommer's practice is of no sig- nificance in this context, since the silence of the administration cannot be regarded in the same light as information about the legal position binding the competent 121. It is apparent from the case-law of the authority. Court 27 that, even though Article 5(2) of Regulation No 1697/79 provides that the

26 — Case C-370/96 Cavita |1998] ECR I-7711, at paragraphs 118. The Commission asserts, moreover, 25 to 33 of the judgment. 27 — See, for example, Foto-Frost, cited above, at paragraph 22 that according to the settled case-law of the of the judgment.

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national authorities 'may' refrain from 125. It is consistent case-law of the post-clearance recovery, the person liable Court, 28 that this question must be is entitled to such a waiver if the conditions addressed in the light of three criteria: it laid down in that provision are satisfied. is necessary to take account of the nature of the error, the professional experience of the trader concerned and the care which the latter has shown.

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133. I therefore propose that the Court 136. As the referring court rightly empha- should answer the third question as fol- sises, the Court of Justice 31 has already lows: clarified the connection between the provi- sions which are the subject of the third and fourth questions respectively.

The authorities must refrain from the post- clearance recovery of duties pursuant to Article 5(2) of Regulation No 1697/79 where, on the occasion of a previous on the spot inspection, they did not object to 137. In this regard, the Court has held that the non-inclusion of flat-rate expenses in 'Article 13 of Regulation No 1430/79 and the customs value for similar transactions Article 5(2) of Regulation 1697/79 pursue and it does not appear that the trader could the same aim, namely to limit the post- have been in doubt as to the correctness of clearance payment of import and export the outcome of the inspection. duties to cases where such payment is justified and is compatible with a funda- mental principle such as that of the protec- tion of legitimate expectations. Seen in that light, the question whether the error was detectable, within the meaning of Arti- cle 5(2) of Regulation No 1697/79, is linked to the existence of obvious negli- gence or deception within the meaning of The fourth question Article 13 of Regulation No 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 134. The Finanzgericht asks in essence Regulation No 1697/79.' whether, in the event of the Court giving a negative answer to the third question, it would be right to conclude that, in any event, the conditions required in Article 13 of Regulation No 1430/79 are satisfied.

139. It is important, however, to recall that 142. In this connection, it must be noted it is consistent case-law of the Court of that the list of 'special situations' set out in Justice 32 that Article 13 of Regulation C o m m i s s i o n R e g u l a t i o n (EEC) No 1430/79 is a general equitable provi- No 3799/86 of 12 December 1986 laying sion intended to prevent, in special situa- down provisions for the implementation of tions, a trader being obliged to bear a loss Articles 4a, 6a, 11a and 13 of Regulation which would not have occurred in the No 1430/79 33 is not exhaustive, and that absence of that situation. By contrast, the the case-law of the Court of Justice and the purpose of Article 5(2) of Regulation Court of First Instance includes a number No 1697/79 is to ensure the application of instances of the concept which are not of a specific principle, namely that of found there. legitimate expectation, in precise circum- stances, namely those of official error.

143. The various situations described by 140. It must thus be noted that, in the Regulation No 3799/86 are clearly excep- judgment in Hewlett Packard France, cited tional in character, since they are situations above, the Court held that a situation such as the theft of goods, their inadvertent which did not amount to an 'error made withdrawal from a customs procedure, the by the competent authorities themselves' impossibility of unloading them or a judi- within the meaning of Article 5(2) of cial order prohibiting the marketing of the Regulation No 1697/79, could none the goods. less be a 'special situation' within the meaning of Article 13 of Regulation No 1430/79.

146. Must it be considered therefore that in 150. I conclude from this that it is not this case there is also a special situation? established that here we are in the presence of a situation involving loss for the trader which would have been avoided if the national authorities had not conducted themselves in a way which created that 147. Such is not the case. In fact it appears situation. from the case-law which has been cited that the purpose of Article 13 of Regulation No 1430/79 is to prevent a trader, in a special situation for which it could not be blamed, from suffering a loss which he would have avoided in the absence of that 151. It follows therefore from the case-law situation. cited that there is no basis for applying Article 13 of Regulation No 1430/79 in this case.

148. In the present case, the trader is faced with a demand for payment of sums which, by virtue of the Community legislation, were due in any event. The only difference 152. Since these observations are made from a 'normal' import transaction is the only in the alternative, I suggest that the fact that the amount of the duties was Court should answer that there is no need claimed later. to answer the fourth question.

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Conclusion

153. I believe therefore that it is appropriate to answer the questions referred by the Finanzgericht Bremen as follows:

The authorities must refrain from post-clearance recovery of duties pursuant to Article 5(2) of Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-clearance recovery of import duties or export duties which have not been required of the person liable for payment on goods entered for a customs procedure involving the obligation to pay such duties where, on the occasion of a previous on the spot inspection, they did not object to the non-inclusion of flat- rate expenses in the customs value for similar transactions and it is not clear that the trader could have been in doubt as to the correctness of the outcome of the inspection.

Question 4

There is no need to reply to the fourth question.

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