C-253/99

BACARDI

OPINION OF ADVOCATE GENERAL JACOBS delivered on 25 January 2001 1

1. In the present case an importer of a The relevant Community legislation consignment of 'Jack Daniel's Whiskey' entered in the customs declaration the Combined Nomenclature subheading 2. The following provisions on the repay- 2208 30 82 which refers to whisky 'other' ment and remission of duties, on the than Bourbon whiskey or Scotch whisky. favourable tariff treatment of goods by After the consignment had been released reason of their nature, on preferential tariff for free circulation, he submitted a valid measures in respect of certain countries, on certificate of authenticity and applied for customs declarations and on the incurring classification under subheading and the determination of a customs debt 2208 30 11 referring to 'Bourbon whiskey' are of relevance. References in the Customs which he claims should result in applica- Code to conditions to be determined in tion of a lower rate of customs duty. The accordance with the committee procedure Finanzgericht (Finance Court) Bremen asks in fact refer principally to the implementing in essence whether in such a situation regulation, which was adopted under that Article 236 of the Customs Code 2 requires procedure. the import duties paid on the basis of the initial declaration to be repaid on the ground that they were not 'legally owed'. In the alternative it asks whether the circumstances of the main proceedings constitute a 'special situation' which may lead to repayment of the import duties Provisions on the repayment and remission under Article 239(1) of the Customs Code of duties in conjunction with Article 905(1) of the regulation implementing the Code. 3 — Repayment or remission where the duties were not legally owed

— that all the other conditions for the granting of the preferential tariff treat- ment are fulfilled. 4. Article 890 of the implementing regula- tion which concerns a particular case fall- ing under Article 236(1) of the Code pro- vides:

Repayment or remission shall take place 'Where a certificate of origin, movement upon presentation of the goods. Where the certificate, internal Community transit goods cannot be presented to the imple- document or other appropriate document menting customs office, the latter shall is produced in support of an application for grant repayment or remission only where repayment or remission, indicating that the it has information indicating unequivocally imported goods were eligible, at the time of that the certificate or document produced acceptance of the declaration for free post-clearance applies to the said goods.'

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— Repayment where a customs declaration — resulting from circumstances in which is invalidated no deception or obvious negligence may be attributed to the person con- cerned. The situations in which this provision may be applied and the procedures to be followed to that end 5. Article 237 of the Customs Code pro- shall be defined in accordance with the vides: Committee procedure. Repayment or remission may be made subject to special conditions.

'Import duties or export duties shall be repaid where a customs declaration is invalidated and the duties have been paid. Repayment shall be granted upon submis- 2. Duties shall be repaid or remitted for the sion of an application by the person reasons set out in paragraph 1 upon concerned within the periods laid down submission of an application to the appro- for submission of the application for inva- priate customs office within 12 months lidation of the customs declaration.' from the date on which the amount of the duties was communicated to the debtor...'

repayment or remission submitted to it under Article 239(2) of the Code:

(o) the customs debt has been incurred otherwise than under Article 201 of the — is based on grounds corresponding to Code 5 and the person concerned is one of the circumstances referred to in able to produce a certificate of origin, a Articles 900 to 903, and that these do movement certificate, an internal Com- not result from deception or obvious munity transit document or other negligence on the part of the person appropriate document showing that if concerned, it shall repay or remit the the imported goods had been entered amount of import duties concerned. for free circulation they would have been eligible for Community treatment or preferential tariff treatment, provi- ded the other conditions referred to in Article 890 were satisfied.'

12. The provisions implementing Arti- cle 21 of the Customs Code are to be found in Title III (Articles 16 to 34) of the implementing regulation, which is entitled 'Favourable tariff treatment by reason of In all other cases, the decision-making the nature of goods'. The provisions relat- customs authority shall refuse the applica- ing to Bourbon whiskey are to be found in tion.' Chapter 4 (Articles 26 to 34) which is entitled 'goods for which a certificate of authenticity or quality, or other certificate, must be presented'.

Provisions on the favourable tariff treat- ment of goods by reason of their nature 13. Article 26(1) of the implementing reg- ulation provides:

11. The tariff treatment of imported Bour- bon whiskey is regulated in a set of provisions concerning 'the favourable tariff treatment from which certain goods may benefit by reason of their nature'. The basic 'Classification under the tariff subheadings provision in that field, Article 21 of the listed in column 2 of the table below of the Customs Code, provides: goods listed against each subheading in column 3, imported from the countries shown in column 5, shall be subject to the presentation of certificates meeting the requirements specified in Articles 27 to 34.

'1. The favourable tariff treatment from which certain goods may benefit by reason of their nature... shall be subject to condi- tions laid down in accordance with the Committee procedure....

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17. Articles 27 and 28 of the implementing regulation lay down detailed and strict formal requirements for the required certi- ficates. 15. It follows from Article 26(1) in con- junction with the table (order number 4) that Bourbon whiskey, in containers hold- ing '2 litres or less', imported from the United States of America may be classified 18. Article 29(1) of the implementing reg- under Combined Nomenclature subhead- ulation provides: ing 2208 30 11 (the classification sought by the applicant in the main proceedings) if the importer presents a valid certificate of authenticity issued by the 'United States Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms'. As a 'The certificate... shall be presented to the consequence of that arrangement a foot- customs authorities of the importing Mem- note to subheading 2208 30 11 of the ber State, together with the goods to which Combined Nomenclature 7 ('Bourbon whis- it relates, within the following time-limits, key, in containers holding 2 litres or less') running from the date of issue of the states: 'Entry under this subheading is certificate:

7 — Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 1987 L 256, p. 1, as last amended for the period in question by Commission Regulation (EC) No 3009/95 of 22 December 1995, OJ 1995 L 319, p. 1.

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BACARDI

— three months, in the case of the goods 21. Article 20 of the Customs Code pro- listed under Order Nos 1, 3 and 4 in vides: the table,

OPINION OF MR JACOBS — CASE C-253/99

countries or groups of countries and 22. Article 27 provides: which provide for the granting of preferential tariff treatment;

'The rules on preferential origin shall lay (e) preferential tariff measures adopted down the conditions governing acquisition unilaterally by the Community in of origin which goods must fulfil in order respect of certain countries, groups of to benefit from the measures referred to in countries or territories; Article 20(3)(d) or (e). Those rules shall:

(f) autonomous suspensive measures pro- (a) in the case of goods covered by the viding for a reduction in or relief from agreements referred to in Arti- import duties chargeable on certain cle 20(3)(d), be determined in those goods; agreements;

5. The certificate shall be issued by the competent governmental authority of the beneficiary country if the products to be exported can be considered products origi- nating within the meaning of Subsection 1. The certificate shall be made available to the exporter as soon as the export has taken place or is ensured.'

26. Article 82 provided: 25. Article 84 provided:

'1. In exceptional cases a certificate of '1. A certificate of origin Form A must be origin Form A may be issued after the submitted, within 10 months of the date of issue by the competent governmental authority of the exporting beneficiary 8 — Those rules were the result of an amendment of the original implementing regulation by Commission Regulation (EC) country, to the customs authorities of the No 3254/94. cited in note 4. In the meantime they have again been amended by Commission Regulation (EC) importing Member State where the pro- No 12/97 of 18 December 1996, OJ 1997 L 9, p. 1. ducts are presented.

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2. Certificates of origin Form A submittec down in Article 62 et seq. of the Customs to the customs authorities in the Commu- Code. Article 62 provides: nity after expiry of the period of validity stipulated in paragraph 1 may be accepted... where the failure to observe the time-limit is due to force majeure or to exceptional circumstances. '1. Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall... contain all the particulars necessary for implementation of the provisions gov- 3. In other cases of belated presentation, erning the customs procedure for which the the customs authorities of the importing goods are declared. Member State may accept the certificates where the products have been presented to them within the period laid down in paragraph 1.'

(c) the documents required for the appli- be the date of acceptance of the declaration cation of preferential tariff arrange- by the customs authorities.' ments or other measures derogating from the legal rules applicable to the goods declared.

32. After a customs declaration has been accepted by customs it may be invalidated. Article 66 of the Code provides: (d) all other documents required for the application of the provisions governing the release for free circulation of the goods declared.' '1. The customs authorities shall, at the request of the declarant, invalidate a declaration already accepted where the declarant furnishes proof that goods were declared in error for the customs procedure 30. Article 63 of the Customs Code pro- covered by that declaration or that, as a vides: result of special circumstances, the placing of the goods under the customs procedure for which they were declared is no longer justified....

'Declarations which comply with the con- ditions laid down in Article 62 shall be accepted by the customs authorities imme- 2. The declaration shall not be invalidated diately, provided that the goods to which after the goods have been released, expect they refer are presented to customs.' in cases defined in accordance with the committee procedure.

31. Article 67 of the Code provides:

'Save as otherwise expressly provided, the 33. Article 251 of the implementing regu- date to be used for the purposes of all the lation defines the cases in which a customs provisions governing the customs proce- declaration may be invalidated after the dure for which the goods are declared shall goods have been released.

'1. Declarations for release for free circula- tion which the customs authorities may accept at the declarant's request without (a) the declaration referred to in Article 62 their being accompanied by certain of the to omit certain of the particulars refer- necessary supporting documents shall be red to in paragraph 1 of that Article or accompanied at least by those documents some of the documents referred to in which must be produced before the goods paragraph 2 of that Article not to be declared can be released for free circula- attached thereto; tion.

2. By way of derogation from paragraph 1, a declaration not accompanied by one or

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more of the documents required before the Provisions on the incurring and the deter- goods can be released for free circulation mination of a customs debt may be accepted once it is established to the satisfaction of the customs authorities that:

38. Article 201 of the Customs Code pro- vides:

OPINION OF MR JACOBS — CASE C-253/99

assessment appropriate to those goods at 43. By letter of 2 October 1996 Bacardi the time when the customs debt in respect submitted a certificate of authenticity 9 of them is incurred.' relating to the consignment in question and applied for the goods to be reclassified under tariff heading 2208 30 11. That heading refers to 'Bourbon whiskey, in containers holding 2 litres or less'. It appears from the order for reference and the written and oral submissions of the parties that Bacardi had applied for the certificate of authenticity in question in The facts and the main proceedings July or August 1996, but that the US authorities had issued the said certificate only on 17 September 1996 and thus after acceptance of the customs declaration. The reclassification requested by Bacardi would 40. On 10 September 1996 the plaintiff lead to a repayment of DEM 1 045.10 Bacardi GmbH (hereinafter 'Bacardi'), customs duty. represented by a transport company, declared to the defendant Hauptzollamt (principal customs office) Bremerhaven 2 160 cases of 'Jack Daniel's Whiskey' for release into free circulation. Each case contained six 0.7 litre bottles making a total of 9 072 litres. 44. By decision of 19 September 1997 the Hauptzollamt rejected Bacardi's applica- tion for repayment. It stated (presumably on the basis of Article 29(1) of the imple- menting regulation) that certificates of 41. The transport company entered in the authenticity had to be presented together relevant box 33 of the Single Administra- with the goods to which they related. tive Document the Combined Nomencla- Belated presentation was not permitted. ture subheading 2208 30 82. That heading refers to whisky 'other' than Bourbon whiskey or Scotch whisky in containers holding 2 litres or less.

49. Moreover, the customs declaration sub- mitted on 10 September 1996 on behalf of and for the account of Bacardi must be seen as an incomplete customs declaration, 48. Contrary to the Hauptzollamt's view, which was validly completed on 2 October Community customs legislation does not 1996. Under Articles 59 and 62(1) and (2) preclude the possibility of belated presenta- of the Customs Code and Article 218(1)(c) tion of certificates of authenticity for the of the implementing regulation 12 a certifi- purpose of obtaining favourable tariff cate of authenticity must in principle treatment. It is obvious that an error has accompany the customs declaration for crept into the wording of Article 29(1) of release for free circulation. But under the implementing regulation. 10 The Article 76(1)(a) of the Customs Code and requirement to 'present' (in the German Article 253(1) of the implementing regula- version 'vorlegen') the goods to the customs tion 1 3it is possible to submit an incom- authorities of the importing Member State plete declaration. Article 255(1) of the is not consistent with the wording of the implementing regulation 14 did not pre- Customs Code and its implementing reg- clude acceptance of Bacardi's incomplete ulation, nor is it practically feasible. customs declaration since (by analogy with Belated presentation of certificates of the rules on certificate of origin form A) a authenticity must therefore be treated in the same way as belated presentation of certificates of origin form A. That is 11 — Bacardi's referente to Article 82(1) and (3) of the imple- because certificates of authenticity serve menting regulation in its current version must presumably be read as a reference to Article 82(1) and (3) of the essentially the same purpose and objective implementing regulation as in force at the relevant tune; see paragraph 23 and note 8. 12 — Those provisions are set out in paragraphs 27 to 29 above. 13 — See paragraphs 35 and 36 above. 10 — Set out ID paragraph 18 above. 14 — See paragraph 37.

51. In the alternative, Bacardi seeks repay- ment of the import duties under Arti- 54. The arguments based on the rules cle 239(1), second indent, of the Customs concerning incomplete declarations are, Code, in conjunction with Article 905(1) of according to the Hauptzollamt, miscon- the implementing regulation, on the ground ceived. Only if the goods had been declared that this case constitutes a 'special situa- as 'Bourbon whiskey' without presentation tion' resulting from circumstances in which of a certificate of authenticity would the no deception or obvious negligence may be customs declaration have been incomplete. attributed to the plaintiff.

55. As regards Article 239(1) of the Cus- 52. The Hauptzollamt's line of argument in toms Code it is unnecessary to refer the the course of the administrative procedure and before the referring court may be summarised as follows: 15 — See paragraph 13 above.

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first indent, of the Customs Code in the case where the importer of Bourbon conjunction with Articles 899 to 904 of whiskey imported from the USA the implementing regulation are not satis- entered the code number 2208 30 82 fied. But there may be a possibility of a in the customs declaration of 10 Sep- refund under Article 239(1), second indent, tember 1996, and only on 2 October of the Customs Code in conjunction with 1996, on submission of a certificate of Article 905(1) of the implementing regula- authenticity corresponding to Annex 5 tion where there has been no deception or to the regulation implementing the obvious negligence and the grounds of the Customs Code, applied for classifica- application point to a 'special situation'. tion under subheading 2208 30 11 of Since the referring court has requested the the Combined Nomenclature, which Court to clarify the term 'obvious negli- would result in application of a lower gence' in the context of another case, 16 it rate of customs duty? refrains for the time being from examining the issue further in the context of the present reference. Supposing, in Bacardi's favour, that there was no 'obvious negli- gence', the crucial question will then be whether a 'special situation' can be assumed within the meaning of Arti- cle 905(1) of the implementing regulation. 2. If the answer to Question 1 is in the negative:

Can it be concluded that these circum- 60. In the light of those considerations the stances constitute a "special situation" Finanzgericht referred the following ques- which — if the other legislative condi- tions for a preliminary ruling: tions are satisfied — may lead to repayment of the import duties under Article 239 of the Customs Code in conjunction with Article 905(1) of the regulation implementing the Customs Code?'

65. Furthermore, Article 29(1) of the implementing regulation 18 does not pre- clude the application of Article 890 thereof. In the first place, the presentation of the certificate of authenticity 'together' Arguments submitted to the Court with the goods to which it relates cannot be a precondition for the application of Arti- cle 890. That provision was adopted pre- cisely to provide a solution where a docu- ment is presented some time after the 63. According to Bacardi, it follows from customs declaration has been accepted. those provisions that the duties in issue Secondly, the three-month time-limit in have to be repaid. Article 29(1), second indent, does not affect the applicability of Article 890. The question whether that time-limit applies at all in the context of Article 890 can be left open, since it was in any event complied with. The certificate in question was issued 64. In its view, nothing in Community on 17 September 1996 and submitted to customs legislation prevents a certificate the German authorities on 2 October 1996. of authenticity from being regarded as an Thirdly, the fact that the certificate was 'other appropriate document' within the issued only after the goods were released meaning of the first paragraph of Arti- for free circulation is not relevant either. It cle 890 of the implementing regulation. is true that Article 86 19 of the implement- Moreover, the certificate presented by ing regulation permits in certain circum- Bacardi indicates clearly that the consign- stances the issue of a certificate of origin ment of 'Jack Daniel's Whiskey' in issue was eligible, 'at the time of acceptance of the declaration for free circulation' for 18 — See paragraph 18 above. 19 — Bacardi's reference to Article 86 of the implementing regulation i n its current version must presumably be read as a reference to Article 84 of the implementing regulation as in force at the relevant time; see paragraph 23 and note 17 — See paragraphs 3 and 4 above. 8.

66. Finally, the analogy with certificates of origin form A and therefore the application of Article 890 of the implementing regula- tion is not precluded by the fact that as a consequence of Bacardi's presentation of the certificate of authenticity the classifica- tion of the goods under a Combined Nomenclature subheading (and not only 68. In the Commission's view, that question the rate of duty) would have to change. The must be answered in the affirmative. The decisive requirement in both cases (belat- concept of 'preferential tariff treatment' in edly submitted certificates of origin form A the first paragraph of Article 890 of the and belatedly submitted certificates of implementing regulation must be inter- authenticity) is merely that the goods preted in the light of the purpose of the referred to in the document are the ones provision as encompassing the type of presented to the customs authorities of the favourable tariff treatment granted accord- importing Member State. It must be borne ing to Article 26 et seq. of the implement- in mind that reclassification on the basis of ing regulation. The latter set of rules newly issued binding tariff information also pursues the same objectives and has the leads to repayment of duties. same function as the rules on preferential origin under Articles 20(3)(d) and (e) and 27 of the Customs Code. Neither the necessity to reclassify the imported goods under another heading nor the requirement under Article 29(1) of the implementing regulation to present the certificate toge- ther with the goods to which it relates can 67. According to the Commission the first affect that finding. The initial classification question must be reformulated. Since it was wrong and must be corrected. Arti- cle 890(1) is precisely designed for situa- tions in which the appropriate document is 20 — See the previous note. submitted belatedly.

70. I agree with the Hauptzollamt and the 72. Article 890, it may be recalled, pro- referring court that the rules on incomplete vides, in so far as is relevant: declarations 21 do not seem to be relevant in order to reply to the first question. It appears from the order for reference that Bacardi submitted a complete written declaration on the Single Administrative Document form in which it declared the goods in question as whisky 'other' than Scotch or Bourbon. Only if the goods had been declared as 'Bourbon whiskey' with- 'Where a certificate of origin, movement out immediate presentation of the neces- certificate, internal Community transit sary certificate of authenticity would the document or other appropriate document customs declaration have been incomplete is produced in support of an application for within the meaning of Article 76(1)(a) of repayment or remission, indicating that the the Code and Articles 253 et seq. of the imported goods were eligible, at the time of implementing regulation. acceptance of the declaration for free circulation, for Community treatment or preferential tariff treatment, the decision- 21 — See paragraphs 34 to 37 above. making customs authority shall grant such

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application only where it is duly estab- 74. Article 20(3)(d) and (e) of the Code 22 lished: refer to 'preferential tariff measures' and Article 21 23 to 'favourable tariff treatment from which certain goods may benefit by reason of their nature'. All the language versions make the same distinction.

16. The wording of Article 890 of the implementing regulation and the system of Community Customs legislation suggest therefore that only the 'preferential tariff 73. According to its wording Article 890 measures' referred to in Article 20(3)(d) thus refers to measures under which certain and (e) of the Code and the corresponding goods are eligible for Community treat- implementing provisions fall within the ment or 'preferential tariff treatment'. The scope Article 890. That finding is not latter term is repeated where Article 890 affected by the German version of that requires that all the other conditions for article which refers more vaguely to 'the preferential tariff treatment' must be Anwendung eines ermässigten Zollsatzes fulfilled. All other language versions of oder der Zollfreiheit (application of a Article 890 (with the exception of the reduction in or a relief of duties). That German version) use a wording which corresponds to the English 'preferential tariff treatment' and the French 'traitement 22 — See paragraph 21 above. tarifaire préférentiel'. 23 — See paragraph 11 above.

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BACARDI

imprecisely translated passage must be read be repaid in situations where the importer in the light of the other language versions is able to produce one of the documents and the remainder of the German text of mentioned in Article 890, but where the Article 890 which correctly refers to Zoll- customs debt has been incurred for reasons präferenzbehandlung (preferential tariff other than release for free circulation. The treatment). Court held as follows:

25 — Paragraph 84 of the indûment and point 5 of the operative 24 — Case C-48/98 Söhl & Söhlke. cited in note 16. part.

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versions of Article 900(1)(o) use a term criteria and both give rise to a certain form which corresponds to the English 'prefer- of favourable customs treatment in the ential tariff treatment' and the French Community. 'traitement tarifaire préférentiel', the Ger- man version refers to Zollbehandlung mit Abgabenbegünstigung. That mistake is sur- prising since the term used in the German version corresponds neither to the other language versions nor to the (also erro- 82. I also consider that an application of neous) wording of the German version of Article 890 by analogy is not precluded the parallel Article 890. merely by the fact that in the case of a belated submission of a certificate of authenticity not only the rate of duty but the classification under the Combined Nomenclature would have to be changed. As Bacardi rightly states, reclassification on the basis of, for example, a judgment of the Court may also lead to repayment of duties. — Application of Article 890 by analogy

83. None the less I consider that an appli- cation of Article 890 by analogy to mea- sures based on Article 21 of the Code and 80. It follows from the foregoing consid- Article 26 et seq. of the implementing erations that Article 890 of the implement- regulation is not possible. That is because ing regulation does not apply directly to the roles of certificates of origin and measures based on Article 21 of the Code. certificates of authenticity within the The further question therefore arises whe- respective procedures for obtaining 'prefer- ther the principles embodied in Article 890 ential' and 'favourable' tariff treatment are may at least, as suggested by the referring different. court, be applied by analogy.

customs authorities of the importing Mem- 86. By contrast a certificate of authenticity ber State together with the goods to which for Bourbon whiskey has a period of it relates. 27 Furthermore, certificates of validity of only three months after being origin form A may in certain circumstances issued and a presentation after the expiry of be issued by the authorities of the exporting that period is not provided for. 31 Arti- State retroactively after the actual exporta- cle 29(1) of the implementing regulation tion. 28 Finally, even the application for provides unequivocally that a certificate of preferential tariff treatment may be made authenticity must be presented together after the event provided that the relevant with the goods to which it relates.

With regard to Bourbon whiskey not even the splitting of consign- ments combined with the use of a photo- copy of the certificate is allowed. 33 No rule allows a certificate of authenticity to be issued after the exportation. 85. Consequently the presentation of a certificate of origin before release for free circulation does not appear to be a neces- sary precondition for the substantive enti- tlement to preferential tariff treatment. Even before a certificate of origin is pre- sented, import duties levied without taking account of a preferential tariff arrangement do not thus seem to be legally owed within 87. It follows from that much stricter the meaning of Article 236(1) of the Code. regime that a certificate of authenticity is That is why Article 890 of the implement- not just a means of proof, but that its ing regulation provides for a mechanism for presentation together with the goods is a repayment and remission where a certifi- necessary precondition for the substantive cate of origin is produced after acceptance entitlement to the favourable tariff treat- of the declaration for free circulation. ment provided for by Article 26 et seq. of the implementing regulation.

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which states: 'Goods for which a certificate rules in force in respect of the release for of authenticity... must be presented' and free circulation of goods,...; whereas they from Article 26(1) itself which states: may not inter alia permit the post-clearance 'Classification under the [favourable] tariff production of documents which are heading... shall be subject to the presenta- required to be produced under the rules in tion of certificates...'. Consequently, where question at the time of acceptance of the the necessary certificate is not presented entry for release for free circulation;...' together with the goods to which it relates and import duties are therefore levied without taking account of a favourable tariff arrangement, those duties are legally owed within the meaning of Article 236(1) of the Code. They may not therefore be repaid on the basis of Article 890 of the implementing regulation applied by ana- logy or of Article 236(1) of the Code. 89. Since Article 890 of the implementing regulation may not be applied to measures based on Article 21 of the Code either directly or by analogy, the further question raised by the Commission whether a certi- ficate of authenticity may be regarded as an 'other appropriate document' within the meaning of Article 890 does not arise. 88. That finding is confirmed by the legis- lative history of Article 890 of the imple- menting regulation. Its almost identically worded predecessor was Article 1(3) of C o m m i s s i o n R e g u l a t i o n (EEC) No 3040/83 of 28 October 1983 laying down provisions on the implementation of Articles 2 and 14 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties. 34 The — Conclusion preamble to that regulation stated:

Arguments submitted to the Court

92. According to the referring court that 94. The Commission submits, first, that question also raises the general problem of there was no deception or obvious negli- the relationship between Article 239(1) of gence on Bacardi's side. Bacardi had no the Code in conjunction with Article 905 et lawful alternative, if it wished to dispose of seq. of the implementing regulation and the goods as early as possible. Secondly, the Article 236(1) of the Code: in its view it Commission quotes from the Court's case- might be argued that once repayment under law 35 and states that a 'special situation' Article 236(1) has been refused because a arises where the circumstances relied on are particular legal requirement under that rule liable to place the applicant in an excep- was not satisfied, that also automatically tional situation as compared with other rules out any refund under Article 239(1) operators engaged in the same business. of the Code in conjunction with Arti- cle 905(1) of the implementing regulation, on the ground that the substantive require- 35 — Case C-86/97 Trans-Ex-Import v Hauptzollamt Potsdam ments contained in Article 236(1) would [1999] ECR I-1041, paragraph 21 of the judgment; Case C-61/98 De Haan Beheer v Inspecteur der Invoerrechten otherwise be called in question. en Accijnzen [1999] ECR I-5003, paragraph 52.

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96. At the outset I would mention that I do not share the referring court's concerns as regards the relationship between on the one hand Article 239(1) of the Code in con- junction with Article 905(1) of the imple- menting regulation and on the other hand Article 236(1) of the Code. Under Arti- cle 239(1) of the Code import duties may be repaid 'in situations other than those 97. As regards the role of Article 905(1) of referred to in Articles 236, 237 and 238'. the implementing regulation in the present As regards Article 905(1) of the implement- 37 — See paragraph 8 above. 38 — Case C-86/97 Trans-Ex-Import v Hauptzollamt Potsdam, 36 — See paragraph 32 above. cited in note 35, paragraphs 17 and 18 of the judgment.

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99. I consider, first, that in the present case there is no special situation on the grounds invoked by the Commission. In its written observations the Commission argued that Bacardi imported its products in the same circumstances as other traders. In my view 98. As regards the interpretation of the that is the opposite of an exceptional concept of 'special situation' the Court has situation. The Commission's argument at held that under the procedure established the oral hearing about the alternative by Article 905 et seq. as in force at the possibility of asking for an invalidation of material time 40 the national customs the customs declaration appears also to be authority must make an initial assessment misconceived. Bacardi's situation does not as to whether there is any evidence of the in my view correspond to any of the existence of a special situation. 41 If need be situations envisaged by Article 66 of the it must forward the file to the Commission Code (in conjunction with Article 251 of which will on the basis of the information the implementing regulation). 43 The goods placed before it make the definitive assess- in question were not declared for the wrong customs procedure, but for the correct 'release for free circulation' procedure. 39 — Cited in note 16. 40 — See paragraph 10 and note 6. 41 — Under the new version of Article 905 the decision-making customs anthority can decide Itself to grant repayment or 42 — Case C-86/97, cited in note 35, paragraphs 19 to 21 of the remission provided that the amount concerned is less than judgment. ECU 50 000. 43 — See paragraph 32 above.

101. It has also to be borne in mind that, under Article 234 EC, the Court may only provide information on the interpretation of Community law, whilst the application 103. In the light of the foregoing consid- of Community law to the case before it is erations I conclude that a 'special situation' for the national court. 45 within the meaning of Article 905(1) of the implementing regulation exists where, hav- ing regard to the objective of fairness underlying Article 239 of the Customs Code, there are circumstances liable to place the applicant in an exceptional situa- tion as compared with other operators engaged in the same business. It is for the 102. It will therefore normally fall to the national authorities to make the necessary national court to decide whether, in the findings and, if need be, to forward the file to the Commission which will on the basis of the information placed before it make 44 — See paragraph 93 above. the definitive assessment whether a special 45 — See, to that effect, Case C-86/97 Trans-Ex-Import v Hauptzollamt Potsdam, cited in note 35, paragraph 15 situation exists such as to justify the of the judgment. repayment of the import duties paid.

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Conclusion

104. For the above reasons the questions referred should in my view be answered as follows:

(1) In situations such as that in the main proceedings, import duties may not be repaid under Article 236 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code read on its own or in conjunction with Article 890 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92;