C-56/02

REBMANN

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 13 February 2003 1

1. The question referred for a preliminary 'Articles 185 and 186 shall apply mutatis ruling in these proceedings concerns the mutandis to compensating products orig- interpretation of the second paragraph of inally exported or re-exported subsequent Article 187 of the Community Customs to an inward processing procedure. Code. 2

2. The Bundesfinanzhof (the German Fed- The amount of import duty legally owed eral Finance Court) asks the Court of shall be determined on the basis of the rules Justice whether a person who imports into applicable under the inward processing the customs territory of the Community procedure, the date of re-export being goods containing compensating products, regarded as the date of release for free which might benefit from the returned circulation.' goods arrangements, is, in all cases, obliged to verify the particulars needed to calculate the import duty owed or whether, alter- natively, it is for the customs authorities to provide that information where the importer is unable to do so. 4. It will be useful to give a brief outline of the rules governing inward processing operations and the import of goods in order to appreciate the scope of Article 187.

I — The legal framework

A — The provision to be interpreted B — The inward processing procedure and the reimport of compensating products

8. In the event that the goods are com- pensating products, resulting from an inward processing procedure, they are entitled to the privileged treatment 6. However, goods imported into the cus- afforded to 'returned goods', and are toms territory of the Community are not granted relief from the corresponding subject to import duties where they are duties. intended for re-export within the period specified by the competent authorities and they undergo one or more of the following processing operations: working, process- ing, or repair, including restoration. The procedure they undergo is called 'inward 9. In the case of compensating products, processing' and the goods resulting from relief only extends to the value of the goods the processing operations are called 'com- which have undergone processing in the pensating products'. The operations are Community, while the part of the value subject to an authorisation which must be corresponding to goods which originated in requested by the person who carries out the a non-member country remains dutiable. In operations or who arranges for them to be those circumstances, the amount of import carried out. 4 duty is calculated according to the rules applicable 'under the inward processing procedure', by reference to 'the taxation elements appropriate to the... goods' on the date of re-export. 8

7. Community goods which, having been exported from the customs territory of the C — The obligations of the importer and Community, are returned to that territory of the customs authorities and released for free circulation, may be granted relief, at the request of the person concerned. 5This is the privileged 'returned goods' procedure, 6 which may only be 10. The importer must provide in writing, on the prescribed official specimen form,

12. In particular, where compensating 14. Between 13 December 1994 and products are released for free circulation 17 March 1995, IH W Rebmann GmbH under an inward processing relief arrange- ('Rebmann') imported into the European ment, the customs office which receives the Community from the Czech Republic 158 request must ask the supervising customs cars, which were originally from Germany, office to provide it with the particulars to be released for free circulation. 1 4The needed to calculate the debt. 11 Under the operation was carried out in 20 consign- rules governing returned goods, which, as I ments and, on each occasion, the cars were have stated, also apply to compensating declared as returned goods and accom- products, the office of exportation must panied by the relevant invoice bearing an communicate to the customs office of export note from the German customs reimportation, where requested to do so, authorities. all the information at its disposal to enable the latter to determine whether the goods meet the conditions necessary for entitle- ment to benefit under the rules. 12

15. The German customs authorities 9 — Articles 59(1), 6 1 , and 62(1) of the Code. declared that the vehicles had undergone 10 — Article 2 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the Community Customs Code (OJ 1993 L 253, p. 1), "the implementing regulation'. 13 — Article 15 of the Community Customs Code. 11 — Article 6 1 3 ( 1 )of the implementing regulation. 14 — The mode! in question was the Audi 80, and Rehmann 12 — Article 856( 1 ) of the implementing regulation. purchased the cars from Volkswagen AG.

16. Rebmann challenged that calculation at first instance before the Finanzgericht (Fi- 19. The Bundesfinanzhof is of the view that nance Court), Munich, claiming that the the question whether the disputed calcu- customs debt should be calculated without lation is lawful depends upon whether, as reference to the value of the Community the Finanzgericht reasoned, the claimant is components contained in the cars, and not only required to verify that the vehicles, stating that it did not have the particulars which were exported under an inward needed to calculate their value because the processing relief arrangement and sub- inward processing had been carried out by sequently reimported, are returned goods, a different undertaking. In defence, the but is also required to declare and prove the customs authorities contended that it was facts which are the basis of the calculation for the importer to supply all the details of the amount of duty owed. Accordingly, needed to determine the customs debt and the Bundesfinanzhof has referred the fol- that the principle of professional secrecy lowing question to the Court of Justice: precluded the use of information provided on a confidential basis by the exporter of compensating products.

'Is the second paragraph of Article 187 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Commu- nity Customs Code to be interpreted as 17. The Finanzgericht dismissed the action meaning that the factual particulars on the grounds that the import duties could required to calculate the import duties not be determined under the second para- legally owed must also be declared and graph of Article 187 of the Community proved where compensating products have Customs Code because the particulars been declared as returned goods, or as relating to the proportion of non-member meaning that, where possible, it is for the country goods, which were required for customs office which releases the goods that calculation, were not available. into free circulation to request those factual

25. Normally, compensating products 22. At the hearing, which was held on resulting from processing operations are, 23 January 2003, oral argument was pres- like the cars in the main proceedings, ented by Rebmann and the Commission. complex products which are made up of a

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number of components. Some are non- exported compensating product, That is Community goods which were imported apparent not only from the system estab- with the sole aim of 'processing' them, lished in the Community Customs Code, while others are Community goods which particularly from the wording of Article 62 have been incorporated by means of work- thereof, but also from the logic of the ing, processing or repair operations. system, since the importer, or the importer's representative, are the people who know the most about the goods and their attributes, and they must set out that information in the relevant declaration when they present the goods at the customs 26. In those circumstances, when the com- office. pensating product returns to the customs territory of the Community, it is important to ascertain which elements of the product are non-Community goods which were initially imported, since these are the only goods which attract duty. 2. The exception to the rule: the customs authorities are responsible

27. The above is an interpretation of the provision which I set out at section I part A of this Opinion.

29. As the facts of the main proceedings demonstrate, it is not unheard of for a situation to arise where the importer is B — Who is responsible for providing the unable to provide the customs authority particulars on which the calculation of the with the evidence needed to calculate the import duties is based? amount of duty owed because he does not have that evidence. In those circumstances, by way of an exception, the competent authorities are required to obtain the evidence or to use the evidence that is already in their possession. 1. The general rule: the importer is respon- sible

(i) The supply of particulars under the inward processing procedure (ii) The supply of particulars under the returned goods procedure

33. Under an inward processing procedure, non-Community goods which have been 35. In returned goods operations, the cus- imported with a view to being subsequently toms authorities which deal with the initial exported as compensating products, do not attract customs duties and are dealt with under the 'suspension' system, 1 5which is 16 — See Article 89(1) of the Community Customs Code and discharged, for the purposes of these pro- Article 577(1) of the implementing regulation, in con- junction with Articles 4(15)(c) and 182(1), first indent, of the Code. 17 — S e e Article 595 and Article 597(2) and (3) of the implementing regulation. 15 — See Article 114(1)(a) and (2)(a) of the Community 18 — See Article 611(2)(h), 613, and 614 of the implementing Customs Code. regulation.

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export must issue a document containing already has them at its disposal, or because the information needed to identify the the importer requests them. For that rea- goods when they are reimported into the son, the implementing regulation requires customs territory of the Community, 19 and the authorities to issue an original and one also, at the request of the person con- copy of information sheet INF 3, and for cerned, an information sheet, known as the original and one of the copies to be INF 3, which serves the same purpose and returned to the exporter for presentation at must set out all the particulars required by the customs office of reimportation, while the customs authorities. 20 the second copy is filed in the customs office which issued it. 22

39. With a view to calculating the customs debt, it is a requirement of the inward processing procedure that information be 37. In the case of returned goods, the obtained through cooperation between the Community legislature places the responsi- customs authorities, who, in order to grant bility for supplying the information relief in returned goods operations, must required for the grant of relief on the use the information at their disposal, person concerned, but it also provides that regardless of whether it was provided by the particulars may be provided by the the person concerned. Accordingly, the customs office itself, either because it aforementioned provisions must be taken into consideration if the returned goods are compensating products which attract the payment of customs duties in proportion to 19 — See Article 847 of the implementing regulation. 20 — See Articles 851(1) and 852(1) of the implementing regulation. 21—See Article 848(1) and (3) and Article 856(1) of the implementing regulation. 22 — See Article 853.

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REBMANN

41. I do not agree with the strict inter- pretation advanced by the Commission in its written observations. In order to deter- mine 'the amount of import duty legally owed', the second paragraph of Article 187 of the Community Customs Code refers to 44. The difference posited by the Commis- 'the rules applicable under the inward sion does not exist. First, because the processing procedure'. The wording of that Community legislature did not view the reference is not specific. It does not refer matter that way. Otherwise, the legislature only to the substantive rules governing the would not have provided, in the second calculation of the customs debt but rather, paragraph of Article 187, that, in order to without further clarification, to the 'appli- calculate the customs debt, the provisions cable' provisions, and, hence, to the pro- governing the inward processing procedure cedural provisions too. There is nothing in apply to compensating products which are the text of the provision to warrant the imported as returned goods; in other distinction claimed by the Commission. words, the same rules which would apply had the goods been released for free circulation immediately after they were manufactured, processed or repaired, or after they had undergone an intermediate procedure. 42. Therefore, in order to determine the amount of import duty owed in respect of 23 — See point 20 of the Commission's written observations.

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REBMANN

detriment of the person concerned, must be exercise of the power to impose penalties rejected. by the public authorities is subject.

51. That is an infringement of the principle of legality and of the principle that there 49. To ignore that circumstance, despite must be a legal basis, pursuant to which having the relevant information at one's conduct giving rise to the imposition of a disposal, and to take advantage of the penalty must be defined beforehand in importer's inability to provide the infor- legislation and the facts must be covered mation in order to calculate the customs by the definition. It is also an infringement debt in a higher amount than it should be of the principle of fault, which proscribes clearly amounts to an infringement of the the imposition of a penalty where there is principle of good faith which must govern no fault. relations between the public authorities and individuals.

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customs authorities... and the right of in advance by whoever provided it or by a traders to be treated fairly'. court order, or where they are obliged to do so pursuant to a legislative provision.

54. Naturally, the importer must prove that the goods in question are compensat- ing products which are being imported as returned goods, together with the propor- tion of the components which is subject to 56. Therefore, Article 15 restricts the cus- duty. The importer must also prove the toms authorities' use of the data they particulars required to calculate the cus- possess, but it in no way precludes them toms debt. However, where the importer is from using non-confidential information. unable to prove those matters, owing to Consequently, it does not conflict with the circumstances beyond his control, but the interpretation which I propose. In general customs authority either has the infor- terms, the arguments I have put forward in mation or is in a position to ascertain it, this Opinion are not refuted by the obli- for that customs authority to issue a gation to safeguard professional secrecy, calculation based on the goods as a whole, since, otherwise, in view of the fact that it is without taking any further steps, infringes an abstract provision of Community cus- the spirit and the letter of the provision, toms law would mean that the rules of the and imbues it with an unnecessary rigidity corpus of customs law which I have which is not a prerequisite for achieving the examined, and many other rules under desired objectives of the Community legis- which the competent authorities may or- lature. must use information available to them, would be deprived of substance.

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