Case C-499/03 P

Peter Biegi Nahrungsmittel GmbH

and

Commonfood Handelsgesellschaft für Agrar-Produkte mbH

v

Commission of the European Communities

(Appeal – Common Customs Tariff – Subsequent recovery of import duties – Waiver of duties to be recovered – Conditions – Article 220(2)(b) of Regulation (EEC) No 2913/92 – Error of the customs authorities – Detectable error – Combined nomenclature – Remarks – Scope)

Opinion of Advocate General Geelhoed delivered on 14 October 2004

Judgment of the Court (Sixth Chamber), 3 March 2005.

Summary of the Judgment

1. Appeals – Grounds – Incorrect assessment of the facts – Inadmissibility – Dismissal –Definition of the legal nature of the facts – Admissibility

(Art. 225 EC; Statute of the Court of Justice, Art. 58)

2. Own resources of the European Communities – Subsequent recovery of import or export duties – Conditions of non-entry in the accounts of import duties set out in Article 220(2)(b) of Regulation No 2913/92 – Error of the authorities which could not ‘reasonably have been detected by the person liable for payment’ – Criteria of assessment – Regulation No 1359/95 containing provisions capable of being described as complex

(Council Regulations Nos 2913/92, Art. 220(2)(b), and 1359/95)

1. It follows from Article 225 EC and Article 58 of the Statute of the Court of Justice that an appeal is limited to points of law. The Court of First Instance therefore has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal. However, where the Court of First Instance has found or appraised the facts, the Court of Justice has jurisdiction, pursuant to Article 225 EC, to carry out a review of the legal classification of those facts and the legal inferences drawn from them by the Court of First Instance. Such a classification is a question of law which, as such, may be subject to review by the Court of Justice in an appeal.

(see paras 40-41)

2. Under Article 220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code, for the competent authorities to be able not to make subsequent entry in the accounts of import duties, three cumulative conditions must be satisfied: the failure to collect the duties must have been due to an error by the competent authorities themselves; their error must be of such a kind that it could not reasonably have been detected by a person liable for payment acting in good faith; and that person must have complied with all the provisions laid down by the legislation in force as regards his customs declaration.

Whether an error of the competent customs authorities was detectable must be assessed having regard to the nature of the error, the professional experience of the operators concerned and the care which they exercised. The nature of the error must be assessed in the light of the complexity or sufficient simplicity of the rules concerned and the period of time during which the authorities persisted in their error.

In this respect, certain provisions of Regulation No 1359/95 amending Annexes I and II to Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff and repealing Regulation No 802/80 create a situation which is not sufficiently simple for it to be easily detectable from an examination of them that, from 1 July 1995, use of the tariff quotas relating to certain goods remains subject to the condition, laid down by Regulation No 1431/94 laying down detailed rules for the application in the poultrymeat sector of the import arrangements provided for in Regulation No 774/94, of producing an import licence. In those circumstances, those rules may objectively be described as complex and the errors committed by the customs authorities, in amending their working tariff while omitting to state that the importation of those goods was subject to production of such a licence, are of such a kind that they could not reasonably be detected by the economic operators.

(see paras 46-48, 54-56)

JUDGMENT OF THE COURT (Sixth Chamber) 3 March 2005 (1)

(Appeal – Common Customs Tariff – Subsequent recovery of import duties – Waiver of duties to be recovered – Conditions – Article 220(2)(b) of Regulation (EEC) No 2913/92 – Error of the customs authorities – Detectable error – Combined nomenclature – Remarks – Scope)

In Case C-499/03 P,APPEAL under Article 56 of the Statute of the Court of Justice, brought on 25 November 2003,

appellants, represented by K. Landry and L. Harings, Rechtsanwälte,

the other party to the proceedings being:

defendant at first instance,

THE COURT (Sixth Chamber),,

composed of A. Borg Barthet, President of the Chamber, J.-P. Puissochet and J. Malenovský (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

having regard to the written procedure and further to the hearing on 16 September 2004,

after hearing the Opinion of the Advocate General at the sitting on 14 October 2004,

gives the following

‘All imports into the Community under the tariff quotas opened in Articles 3 and 4 of Regulation … No 774/94 of products in the groups referred to in Annex I to this Regulation shall be subject to the presentation of an import licence.

The quantities of products to which these arrangements apply and the rate of reduction in the levy shall be those listed for each group in Annex I.’

‘2.

…

‘… where the customs authorities either consider that the conditions laid down in Article 220(2)(b) of the Code are fulfilled or are in doubt as to the precise scope of the criteria of that provision with regard to a particular case, those authorities shall submit the case to the Commission, so that a decision may be taken in accordance with the procedure laid down in Articles 872 to 876.’

‘After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the Committee to consider the case in question, the Commission shall decide whether the circumstances under consideration are or are not such that the duties in question need not be entered in the accounts.’

Arguments of the parties

Assessment by the Court

– Admissibility of the first plea in law

– Merits of the first plea in law

On those grounds, the Court (Sixth Chamber) hereby:

[Signatures]