C-133/02

TIMMERMANS TRANSPORT AND HOOGENBOOM PRODUCTION

OPINION OF ADVOCATE GENERAL LÉGER delivered on 11 September 2003 1

1. Are national customs authorities entitled I — Legal framework to revoke at their own discretion binding tariff information (hereinafter 'BTI') which they issue to traders by way of a tariff classification for goods in cases where those national authorities change their interpre- tation of the relevant customs nomencla- ture?

4. A BTI notice is a document by which the customs authorities of the Member States of the European Community inform traders, at their request, of the tariff head- 2. That is the question which has been ing (laid down in the customs nomencla- referred by the Gerechtshof te Amsterdam ture) under which goods which those (Regional Court of Appeal, Amsterdam) in traders intend to import or export should proceedings brought by two undertakings, be classified. That information, which one established in the Netherlands and the involves a degree of interpretation of the other in Cyprus, against the Netherlands customs nomenclature, allows traders to customs authorities in connection with the predict the levels of import and export duty tariff classification of items of furniture and (which they are likely to have to pay) and agricultural produce. also to calculate the total amount of export refund (which they are likely to receive under the common agricultural policy).

3. That question asks the Court to specify the meaning and scope of certain provisions of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Com- munity Customs Code 2 (hereinafter the 'CCC'), as amended by Regulation (EC) No 82/97 of the European Parliament and 5. Customs authorities are required to issue of the Council of 19 December 1996. 3 the BTI — and, in principle, to comply with it for a certain period of time — on completion of the customs formalities, that 1 — Original language: French. 2 — OJ 1992 L 302, p. 1. is to say when the intended import or 3 — OJ 1997 L 17, p. 1. export operation is carried out.

7. Applications for BTI are made in writing either to the competent customs authorities in the Member State (or Member States) in (a) in the case of tariff information: which the information is to be used, or to the competent customs authorities in the Member State in which the applicant is established. 8 The competent customs auth- orities' decision to grant an application for BTI is subject to the submission by the person concerned of various pieces of (i) where a regulation is adopted and information. 9 the information no longer con- forms to the law laid down thereby; 4 — OJ 1990 L 160, p. 1. 5 — Third recital in the preamble to the regulation. 6 — Title I, Chapter 2, Section 3. 7 — Title II of Commission Regulation (EEC) No 2454/93 of 10 — Article 12(4) of the CCC. 2 July 1993 laying down provisions for the implementation 11 — Article 12(2) of the CCC and Article 11 of the implement- of the CCC (OJ 1993 L 253, p. 1; hereinafter 'the ing regulation. implementing regulation'). 12 — Article 12(4) of the CCC. 8 —Article 12(1) of the CCC and Article 6(1) of the imple- 13 — As amended by Regulation No 82/97, which entered into menting regulation. force on 1 January 1997, as corrected (OJ 1997 L 179, 9 — Article 6(3) and (4) of the implementing regulation. p. 11).

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(ii) where it is no longer compatible 1. A decision favourable to tne person with the interpretation of one of concerned shall be revoked or amended the nomenclatures...: where, in cases other than those referred to in Article 8 [where the favourable decision is annulled on the ground that it was issued on the basis of incorrect or incomplete information], one or more of the conditions laid down for its issue were not or are no — at Community level, by reason of longer fulfilled. amendments to the explanatory notes to the combined nomencla- ture or by a judgment of the Court of Justice of the European Com- munities; 14 2. A decision favourable to the person concerned may be revoked where the person to whom it is addressed fails to fulfil an obligation imposed on him under that decision....'.

be valid pursuant to paragraph 5(a)(ii) or type of goods had been classified under that (iii)... may still use that information for a tariff heading by BTI issued previously and period of six months from the date of submitted a catalogue showing all the publication or notification, provided that products it offered for sale, including he concluded binding contracts for the photographs of the goods in question. purchase or sale of the goods in question, on the basis of the [BTI], before that measure was adopted'. However, that paragraph also provides that, 'in the case of products for which an export, import or advance-fixing certificate is submitted when customs formalities are carried out, 16. On 15 January 1999, the competent the period of six months is replaced by the customs authorities issued BTI granting period of validity of the certificate'. Timmermans' application in full (as regards the description of the goods and their tariff classification).

17. However, on 19 March 1999, they I I — Facts and procedure before the revoked that BTI on the ground that, national court following a more detailed examination of the matter and after consultation with the customs authorities in a neighbouring dis- trict on the interpretation of the relevant nomenclature, it had become apparent that the goods in question should be classified under tariff heading 7013 29 91 00 (rather than under the heading initially selected) as A — Case C-133/02 glassware of a kind used for table, kitchen, toilet, office, etc. The decision to revoke the BTI was to take effect on the date of its adoption.

19. In support of that appeal, it submits 22. On 6 February 1998, Hoogenbloom that, since the issue of the BTI in question applied to the same customs authorities for suggested that the tariff classification con- the issue of four BTI notices in relation to tained in it would be binding for years to products (similar to those covered by the come and would not be changed, its previous notice) described as preserved revocation infringed the principle of the apples, hazelnuts and sunflower seeds con- protection of legitimate expectations and taining added sugar (which, according to the principle of legal certainty. According the applicant, fell under tariff headings to the competent customs authorities, the 2008 99 49 30 00, 2008 19 19 10 00 and revocation at issue was based on the 2008 19 19 90 00 respectively) and combined provisions of Articles 9(1) and unroasted peanuts (which, again according 12(5)(a)(iii) of the CCC, as amended. to the applicant, fell under tariff heading 2008 11 94 00 00).

B — Case C-134/02 23. On 26 February 1998, the customs authorities in question issued four BTI notices granting Hoogenboom's appli- cations in full.

20. On 9 October 1997, the company Hoogenboom Production Ltd (hereinafter 'Hoogenboom'), which is established in Cyprus, applied to the Netherlands cus- toms authorities (in the district of Rotter- dam) for the issue of BTI in relation to 24. However, on 6 October 1998, they products described as 'preserved apricots revoked all the notices issued (that is to say containing added sugar', which, in its view, five in total) on the ground that the fell under tariff heading 2008 50 61 00. products at issue should be classified under tariff heading 1701 16 and not under the heading initially prescribed, the wording for which precluded classification there- under. 17 On that occasion, they allowed Hoogenboom to cany on using the revoked BTI until 31 December 1998.

26. In support of that appeal, it submits that there is no legal basis for the revoca- IV — Observations of the parties tion decision at issue, either in Article 9 or in Article 12(5) of the CCC. Its interpre- tation of those provisions is contested by the customs authorities, which take the contrary view that Article 12(5)(a)(iii) 28. According to Timmermans and Hoo- explicitly provides for the possibility of genboom, who attended the hearing, it such revocation in the event of a blatant follows from the Court's case-law that error by the customs authorities in the BTI may not be unilaterally amended by classification of goods for tariff purposes. national customs authorities. 1 8The amendment of BTI by national customs authorities does not fall within their own initiative but exclusively within that of the Commission. The contrary situation would have the effect of jeopardising the require- ments of legal certainty (in a manner contrary to the objective pursued by the I I I— The question referred introduction of BTI) and the uniform application of Community law (particu- larly in circumstances where there was a possibility that the same BTI might be 27. In the light of the arguments put amended at will by the customs authorities forward by the parties, the Gerechtshof te in every Member State). Amsterdam decided to stay proceedings and refer the following question to the Court for a preliminary ruling:

29. According to the Netherlands Govern- ment, national customs authorities are 'Does Article 9(1) of the Community Cus- entitled to amend BTI where a more toms Code, read in conjunction with Article 12(5)(a)(iii) thereof, provide the customs authorities with a legal basis for 18 — The applicants referred to the judgments in Case C-250/91 Hewlett Packard France [1993] ECR I-1819 and Case withdrawing BTI where they change the C-315/96 Lopex Export [1998] ECR I-317.

detailed examination leads them to the 31. In the same vein, the Commission view that the goods concerned should be submits that the combined provisions of classified under a different tariff heading Articles 9(1) and 12(5)(a)(iii) of the CCC following an error of assessment or a authorise national customs authorities to change in thinking in relation to tariff amend or revoke BTI in order to correct classification. errors they have made in classifying goods for tariff purposes. That view, it contends, is not contrary either to the principle that BTIis binding on customs authorities in the determination of customs debts or refunds, or to the principles of legitimate expec- tations and legal certainty, since, firstly, the possibility of revoking or amending BTI is clearly provided for by the aforementioned provisions of the Community Customs Code and thus precludes any legitimate expectation that the BTI will remain in being and, secondly, the holder of BTI may continue to use that information for six 30. In support of that view, it argues that months after its revocation, so that observ- Article 9(1) of the CCC (to which reference ance of the principle of legal certainty is is made by Article 12(5)(a)(iii) of the CCC, ensured. as amended) implicitly but necessarily implies that the grant of BTI is subject to its conformity with the customs nomen- clature as it should be understood at the time of the customs declaration for the goods in question, that is to say at the time when the import or export operation is carried out. In cases where that condition appeared to be met at the time when the V — Analysis BTI was issued but is no longer met when the economic operation is carried out, customs authorities are entitled to revoke or amend the BTI in question. Ruling out the possibility of such revocation or amend- ment throughout the period for which the BTI is valid (i.e. for six years) would result 32. First of all, I would point out that in an unacceptable distortion of compe- neither of the two orders for reference tition between traders. Furthermore, a indicates whether the tariff classification measure revoking or amending BTI in this given in the BTI at issue was in fact vitiated way is not contrary to the principle of the by an error in the interpretation of the protection of legitimate expectations and customs nomenclature. Although the cus- the principle of legal certainty because toms authorities claim to have made such Article 12(6) of the CCC provides that the an error when issuing the BTI in question, holder of the BTI in question may continue there is nothing in the file to support the to use that information for a certain period view that the alleged error has been estab- of time. lished.

33. After all, the customs authorities that appeared necessary, in order to ensure a issued the BTI merely carried out a more measure of legal certainty for traders when detailed examination of the customs carrying on their activities, to facilitate the nomenclature and of the resultant tariff work of the customs services themselves classification of the goods concerned and, and secure more uniform application of in the Timmermans case, made consul- Community customs law, to establish rules tations on the matter but only with the which oblige customs authorities to provide customs authorities in a neighbouring dis- information which is binding on the admin- trict. These cannot be considered sufficient istration under certain well-defined con- grounds on which to be able to say with ditions'. 19 Those were the objectives which certainty that an error has been established. were pursued by Regulation No 1715/90 and by the regulation, which succeeded the former, establishing the Community Cus- toms Code, in particular the version appli- cable to the dispute in the main proceed- ings. 34. In such circumstances, the customs authorities can therefore be said to have revoked the BTI in question at their own discretion, that is to say in accordance with the change in their own interpretation of the customs nomenclature. 37. The question whether the customs authorities of the Member States are entitled, on the basis of the combined provisions of Articles 9(1) and 12(5)(a)(iii) of the CCC, to revoke BTI at their own discretion in cases where they change their interpretation of the relevant customs 35. In my view, the question referred nomenclature must be determined in the should therefore be understood as seeking light of those objectives and of the general to ascertain whether the combined provi- scheme of the rules introduced. In my view, sions of Articles 9(1) and 12(5)(a)(iii) of the that question must be answered in the CCC, as amended, are to be interpreted as negative. meaning that customs authorities are entitled, on the basis of those provisions, to revoke BTI issued by them at their own discretion in cases where they (on their assessment alone, in some cases following consultations restricted to the customs 38. As I have already said, Article 12(2) authorities in a neighbouring district) and (4) of the CCC provides that BTI is change their interpretation of the customs binding on the customs authorities as nomenclature. against the holder of that information in respect of the tariff classification of the goods concerned and is in principle binding for a period of six years from its date of issue. That principle satisfies the concern to

40. Given the importance of the tariff 39. After all, only binding tariff infor- classification of goods and the con- mation is capable of offering such guaran- sequences it has for traders, it is incumbent tees. It alone allows a trader to predict with on customs authorities to be particularly sufficient reliability the customs classifi- diligent when issuing BTI, by ensuring inter cation relevant to the goods in question alia that they have all the information they and, consequently, the tariff arrangements require to give an informed opinion on the (duty or refund) likely to apply to the tariff classification of the goods in ques- operations by which he intends to import tion. 22 or export those goods. 21 Since BTI is, in principle, binding for a period of six years, the holder of that information is able, at the time of issue, to make forecasts for the long and shorter term, to start from a position of knowledge when positioning himself on a given market for the sale of goods and to make the investments necessary. The ability to make such forecasts is clearly critical, 41. That duty of diligence is particularly particularly for small and medium-sized important given that, pursuant to Article 11 undertakings, since a change in the tariff of the implementing regulation, BTI sup- classification given in BTI (if it involves an plied by the customs authorities of one Member State is binding on the competent authorities of all the Member States under 20 — The fifth recital in the preamble to Regulation No 1715/90 the same conditions. This principle means stated that information concerning the classification of goods in the customs nomenclature is the most important that the competent authorities of a Member and most useful category of information for traders State in which customs formalities are because of the highly technical nature of the combined nomenclature and the Community nomenclatures derived completed in respect of certain goods are from it. 21 — It is important to point out that the tariff classification not entitled to depart from the terms of the given in BTI does not affect the rate of duty or refund, BTI issued by the competent authorities of based on that classification, that will be applicable on completion of the customs formalities relating to the goods in question. That was stated in the seventh recital in the pteamble to Regulation No 1715/90. Practice has shown that rates of duty and refund vary regularly in line with 22 — See to this effect Article 6(3) and (4) of the implementing market trends. regulation.

43. It is only in certain very specific circum- stances that BTI is not binding, because void, or ceases to be so, with the result that the holder of that information is not or is

23 — See Article 6(1) of the implementing regulation, which 45. It should be pointed out first of all that specifies the customs authorities to which applications for BTI should be directed. the second sentence of Article 12(4) of the 24 — As pointed out in relation to Regulation No 1715/90 by CCC, as amended, provides that BTI is to Advocate General Tesauro in his Opinion in Hewlett Packard Trance, cited above (fourth paragraph of point 5). be annulled where it is based on inaccurate I-1136

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46. Article 12(5)(a)(i) of the CCC, as amended, provides for the situation where BTI is not in conformity with a Community regulation adopted after the BTI was issued 48. The Court went on to say that that (and while it is still valid, that is to say principle follows clearly and precisely from within six years of its being issued). That the wording of the provisions at issue, situation was examined by the Court in which are therefore in keeping with the Lopex Export, cited above, which con- requirements relating to the safeguarding of cerned a reference for a preliminary ruling legal certainty (because they allow traders on the validity of the provisions of the first to be certain of their rights and obli- indent of the first paragraph of Article 13 gations), and that, accordingly, traders are of Regulation No 1715/90, which are precluded from being able to entertain, on similar to those in force now, as cited the sole basis of BTI, a legitimate expec- above. 26 tation that the tariff heading in question will not be amended by a measure adopted by the Community legislature. 29 The Court 25 — In this case, it is common ground that the information concluded that consideration of the provi- submitted by Hoogenboom in its various applications for BTI was accurate and complete (see paragraph 2.3 of the sions at issue had not disclosed the exist- order for reference and paragraph 18 of the Commission's ence of any factors of such a kind as to observations). Although the national court has not said as much, I assume that the same was true of that submitted by affect their validity. 30 Timmermans. 26 — Those provisions state that '[w]here, as a result of the adoption of a regulation amending the customs nomen- clature, or a regulation determining or affecting the classification of goods in the customs nomenclature, [BTI] 27 — Judgment in Lopex Export, cited above (paragraph 28). previously supplied no longer conforms to Community laws as thus established, such information shall cease to be 28 — Ibidem. 29 — Ibidem (paragraphs 28 and 29). valid from the date on which the regulation in question applies. 30 — Ibidem (paragraph 31).

50. The first indent of Article 12(5)(a)(ii) of the CCC, as amended, works in the same way. It does provide that BTI must cease to 52. Moreover, the Commission has already be valid where it is no longer compatible adopted several decisions on the basis of with a particular interpretation of the those provisions (as well as on those of relevant customs nomenclature. However, Article 9 of the implementing regulation) 31 the interpretation at Community level to in order to put a stop to persistent dif- which it refers has nothing to do with that ferences or established errors of interpre- at issue in the disputes in the main proceed- tation which had given rise to conflicting ings. The difference between the two is one BTI notices (i.e. conflicts between notices not only of degree but also of substance. issued by the customs authorities of some After all, the interpretation referred to by Member States without taking account of the above provisions is based exclusively on the general rules on the interpretation of amendments to the explanatory notes to the combined nomenclature or a regulation the relevant nomenclature or from a judg- determining the classification of goods in ment of the Court of Justice. Such measures and decisions are necessarily aimed at, and have the effect of, ensuring the correct and 31 — I would point out that only the provisions of Article 9(1) uniform application of the customs nomen- are relevant, not those of Article 9(2). As was made clear at clature within the Community. They are the hearing, BTI does not impose obligations on its holder, but the decisions referred to in Article 9(2) do.

55. They support in part the interpretation put forward by the Netherlands Govern-

32 — See, inter alia, Commission Decisions 98/405/EC of 16 June 1998 concerning the validity of certain binding 57. That interpretation is consistent with tariff information (issuced byDanish, French and Nether- the meaning of the provisions of lands customs authorities (OJ 1998 L 178, p. 42)); 1999/637/EC of 12 July 1999 concerning the validity of certain binding tariff information (issued by United Article 12(5)(a)(i) and (ii) of the CCC, as Kingdom customs authorities (OJ 1999 L 251, p. 17)1; amended, which I examined above, since 1999/747/EC of 8 November 1999 concerning the validity of certain binding tariff information (issued by German those provisions state that BTI must cease and Netherlands customs authorities (OJ 1999 L 298, p. 37)); 2000/41/EC of 29 December 1999 concerning the to be valid where the tariff classification validity of certain binding tariff information (issued by contained in it is no longer in conformity Irish and United Kingdom customs authorities (OJ 2000 L 13, p. 27)); and 2003/97/EC of 31 January 2003 with the relevant legislation or becomes concerning the validity of certain binding tariff infor- incompatible with the necessary interpre- mation (BTI) issued by the Federal Republic of Germany (OJ 2003 L 36, p. 40). tation of the customs nomenclature.

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OPINION OF MR LÉGER — JOINED CASES C-133/02 AND C-134/02

61. After all, it should be borne in mind that, unlike the Commission, the customs authorities issuing BTI do not necessarily have an overview of all the BTI notices issued by all the other customs authorities within the Community in respect of ident- 59. However, I do not share the opinion, ical or similar goods. 33 put forward by the Netherlands Govern- ment and the Commission, that customs authorities are entitled to revoke BTI in cases where they take the view at their own discretion (i.e. on the basis of their assess- ment alone) that they have made an error in the interpretation of the customs nomen- clature and in the corresponding tariff 62. In my opinion, where customs auth- classification. After all, such revocation is orities consider that they have made an not necessarily justified because the error in question has not necessarily been estab- lished as such. Furthermore, the possibility 33 — The Commission has all the necessary relevant details, of revoking BTI in this way is not readily since it is responsible for administering a database containing copies of all the BTI notices issued and the compatible either with the objective of the details relating to them (see Articles 6(3)(k) and 8(1) of the uniform application of the customs nomen- implementing regulation). The Commission may send that data to customs authorities which request it to do so clature or with the objective of legal (Article 8(2) of the implementing regulation). Customs authorities intending to revoke a BTI notice at their own certainty pursued by the introduction of discretion will not necessarily take the trouble to request such details from the Commission so that they can make BTI. their decision on an informed basis.

error in the interpretation of the customs 64. In my view, the question that arises is nomenclature when issuing BTI, they whether a decision would also be necessary should notify the Commission to that effect if the Commission were approached by the in order to ensure that it is indeed an error customs authorities that had issued the BTI such as to justify revocation of the BTI in themselves (rather than by other customs question. Only a mechanism such as this authorities) and, if so, whether a simple would be capable of ensuring that the letter from the Commission to the relevant customs nomenclature is applied correctly, customs authorities would suffice, that is to or at least uniformly. In my view, the need say a form of reply the adoption and for customs authorities to notify the Com- transmission of which is not subject to mission in this way follows both from the excessive procedural constraints. objectives of legal certainty and the uni- form application of the customs nomen- clature pursued through the introduction of BTI, and from the obligation incumbent on Member States, under Article 10 EC, to cooperate dutifully with the Community institutions. 34 65. As regards the objective of legal cer- tainty, it is important to point out that the interpretation put forward by the Nether- lands Government and the Commission makes the principle that BTI is inherently binding redundant and thus fails to take into account the aim pursued by the Community legislature in introducing the BTI system, as described by the Court in its judgment in Lopex Export, cited above. 35 After all, the principle that BTI is binding would be meaningless if customs auth- 63. Moreover, as the Commission stated at orities were entitled to revoke BTI issued the hearing, it is often approached by the by them at their own discretion, on the sole customs authorities of certain Member ground that, in their view, they had made States contesting the validity of BTI issued an error or had changed their own inter- by other customs authorities as regards the pretation of the customs nomenclature. interpretation of the customs nomenclature given in that information. As it went on to say, it must then assess whether it is necessary to adopt on the validity of the BTI in question a decision ordering the customs authorities against which the com- plaint has been made to revoke that information. 66. In any event, given that objective of legal certainty, I find it difficult to imagine that the Community legislature would have 34 — See, mutatis mutandis, the judgment in Case C-234/89 been content to afford only temporary Detimitis [1991] ECR I-935, paragraphs 44, 45, 47, 49, 52 and 53, which concerned the respective powers of the national courts and the Commission in the application of Articles 85(1) and 86 of the EC Treaty (now Articles 81 and 82 EC) relating to competition. 35 — Paragraphs 19 and 28.

70. Such a situation would hardly be com- patible with the objective pursued through 68. First of all, it is not inconceivable that the introduction of BTI, which was to some contracts will carry longer delivery provide traders with significant guarantees periods. Moreover, even if the protection as to the tariff classification of goods so does last for as long as it takes for the that they could carry on their activities on a goods in question to be delivered, it is satisfactory basis. In this regard, much as I likewise not inconceivable that the revoca- can understand why the Community legis- tion of BTI will have a serious impact on lature, after weighing up the interests the marketing activities of the trader con- involved (those of BTI holders and those cerned. relating to the correct and uniform appli- cation of the customs nomenclature), pro- vided only temporary protection for the interests of BTI holders in cases where the information becomes incompatible with the interpretation of the customs nomenclature given by the Community institutions, and, 69. After all, although, in those circum- in particular, by the Court of Justice, I none stances, the holder of the BTI would be able the less find it difficult to imagine that the to use that information when completing Community legislature intended for BTI the customs formalities relating to the holders to be subject to the same arrange-

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ments in cases where the information is combined provisions of Articles 9(1) and revoked by the customs authorities at their 12(5)(a)(iii) of the CCC, as amended, are to own discretion. be interpreted as meaning that customs authorities which have issued BTI are not entitled, on the basis of those provisions, to revoke that information at their own dis- cretion in cases where they change their 71. Consequently, the answer to the ques- own interpretation of the relevant customs tion referred in this case should be that the nomenclature.