Avis juridique important

Judgment of the Court (Third Chamber) of 1 April 1993. - Hewlett Packard France v Directeur Général des Douanes. - Reference for a preliminary ruling: Tribunal d'instance de Paris 7ème - France. - Post-clearance recovery of customs duties. - Case C-250/91. European Court reports 1993 Page I-01819

Summary Parties Grounds Decision on costs Operative part

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1. Own resources of the European Communities ° Post-clearance recovery of import and export duties ° "Error made by the competent authorities themselves" ° "Error ... which could not reasonably have been detected by the person liable" ° Person liable who has "observed all the provisions laid down by the rules in force" ° Meaning

(Council Regulation No 1697/79, Art. 5(2))

2. Own resources of the European Communities ° Repayment or remission of import and export duties ° "Special situation" ° Circumstances in which "no deception or obvious negligence may be attributed" to the person concerned ° Meaning

(Council Regulation No 1430/79, Art. 13)

1. Article 5(2) of Regulation No 1679/79, which makes any waiver of post-clearance recovery of import or export duties by the competent customs authorities subject to the fulfilment of three conditions, must be interpreted in the light of the following considerations:

Incorrect tariff information given to a trader other than the person liable for payment by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery does not, in the absence of a Community regulation ensuring that such information has the same legal significance in all the Member States, constitute "an error made by the competent authorities themselves". On the other hand, such an error is made by the authorities competent to effect recovery, within the meaning of that provision, where, despite the number and size of the imports made by the person liable, those authorities raised no objection concerning the tariff classification of the goods in question, even though a comparison between the tariff heading declared and the explicit description of the goods in accordance with the indications of the nomenclature would have disclosed the incorrect tariff classification.

In order to determine whether there has been "an error ... which could not reasonably have been detected by the person liable", account must be taken, in particular, of the nature of the error, of the experience of the trader and of the diligence shown by him. In that regard, it is appropriate to make clear:

° that the need to adopt, in view of the divergences between the various Member States concerning the tariff classification of goods, a regulation definitively clarifying the tariff heading under which the goods are to be classified constitutes strong evidence of the complexity of the problem to be resolved;

° that even an experienced trader may regard his customs declarations as correct where he relied, for the purposes of the tariff classification of the goods in question, on tariff information provided by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery to a company belonging to the same group as the person liable and where the tariff classification indicated in the customs declaration was not challenged for a relatively long period by the competent authorities;

° that the requirement of diligence on the part of the trader concerned must be regarded as satisfied where the trader had no doubt, in view of the existence of tariff information supplied to a company belonging to the same group as the person liable, as to the correctness of the tariff classification of the goods in question;

° that it is for the national court, having regard to the circumstances of the case, to establish whether, on the basis of this interpretation, the criteria for determining the extent to which the error that resulted in non-collection of the customs duties was capable of detection are satisfied.

The requirement that the person liable should have observed, in relation to his customs declaration, "all the provisions laid down by the rules in force" must be regarded as satisfied where the trader, acting in good faith, declared the goods under an incorrect tariff heading, provided that the latter was clearly and explicitly indicated together with the description of the goods in question, so that the competent customs authorities should have been able immediately and unequivocally to determine the lack of conformity with the correct tariff heading.

2. Article 13 of Regulation No 1430/79, which empowers the competent authorities to repay or remit import and export duties in special situations which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned, must be interpreted in the light of the following considerations:

The fact that a trader has relied on incorrect information supplied to a company belonging to the same group as the person liable by a competent customs authority in a Member State other than that of the customs authority competent to effect post-clearance recovery may constitute a special situation of the kind referred to in that article.

It is for the national court to establish whether both the other preconditions for the application of Article 13, namely the absence of obvious negligence or deception and due compliance with procedural rules, have been satisfied. The question whether the error was detectable, within the meaning of Article 5(2) of Regulation No 1679/79, is linked to the existence of obvious negligence or deception within the meaning of 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 Regulation No 1679/79.

In Case C-250/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal d' Instance of the Seventh Arrondissement, Paris, for a preliminary ruling in the proceedings pending before that court between

Hewlett Packard France

and

Directeur Général des Douanes

on the interpretation of 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 (OJ 1979 L 197, p. 1) and, in the alternative, of Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1),

THE COURT (Third Chamber),

composed of: M. Zuleeg, President of the Chamber, J.C. Moitinho de Almeida and F. Grévisse, Judges,

Advocate General: G. Tesauro,

Registrar: H. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Hewlett Packard France, by Fabrice Goguel, of the Paris Bar,

° the French Government, by Philippe Pouzoulet, Sous-Directeur, Direction des Affaires Juridiques, Ministry of Foreign Affairs, and Jean-Louis Falconi, Sécrétaire des Affaires Étrangères, acting as Agents,

° the Commission of the European Communities, by Blanca Rodríguez Galindo, of its Legal Service, and Virginia Melgar, a national civil servant seconded to the Commission' s Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Hewlett Packard France, the French Government, represented by Jean-Louis Falconi, acting as Agent, assisted by Odile Gonthier, Inspecteur Principal, Direction Générale des Douanes, Bureau des Affaires Contencieuses, and the Commission at the hearing on 17 September 1992,

after hearing the Opinion of the Advocate General at the sitting on 22 October 1992,

gives the following

Judgment

1 By judgment of 24 September 1991, amended by judgment of 22 October 1991, received at the Court on 7 and 30 October 1991, the Tribunal d' Instance (District Court) of the Seventh Arrondissement, Paris, referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of 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 (OJ 1979 L 197, p. 1) and, in the alternative, of Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1).

2 That question was raised in proceedings between Hewlett Packard France and the French customs administration.

3 Between 1986 and 1988, Hewlett Packard France imported computer keyboards into France from Singapore. Relying on information supplied on 23 January 1985 by the Oberfinanzdirektion Muenchen (Regional Finance Office, Munich) to Hewlett Packard' s German subsidiary, Hewlett Packard France declared those goods for release for free circulation in France under tariff heading 85.55 C, parts for computers.

4 Products under that tariff heading enjoyed suspension of customs duties under Annex II to Council Regulation (EEC) No 3599/85 of 17 December 1985 applying general tariff preferences for 1986 in respect of certain industrial products originating in developing countries (OJ 1985 L 352, p. 1). Consequently, Hewlett Packard France was not required to pay duty on the products in question.

5 After that exemption was granted, the Direction Nationale des Renseignements et des Enquêtes Douanières (National Office for Customs Information and Investigations, (DNRED)), by notice of 24 May 1989, informed Hewlett Packard France that it had infringed the customs regulations "by wrongly declaring goods, necessitating the collection of the customs duties evaded". According to the French customs authorities, the imported computer keyboards were computer "units" falling within tariff heading 84.53 B. Goods under that heading also qualified for suspension of duties, but only subject to an annual tariff ceiling. Since that ceiling had been reached in 1986, the customs authorities commenced proceedings for post-clearance recovery of customs duties on the 1986 imports at the rate of 4.5%. The duties payable amounted to FF 1 402 870, plus FF 260 933 value added tax.

6 By letters of 21 February and 26 June 1990, Hewlett Packard France asked the French customs authorities to waive any penalty and forward the file to the Commission of the European Communities with a view to obtaining a decision waiving recovery pursuant to Article 5(2) of Regulation No 1687/79.

7 Since it received no reply from the French customs administration, Hewlett Packard France instituted proceedings before the Tribunal d' Instance of the Seventh Arrondissement, Paris, for annulment of the implied decision rejecting its request for non-recovery of the duties in question. That court stayed the proceedings pending a preliminary ruling from the Court of Justice on the following question:

"Since it appears that the computer keyboards imported by the company Hewlett Packard should have been declared under heading 84-53, are the circumstances relied on by that company in this case, namely

° the existence of a decision of the Munich Revenue Office (Finanzdirektion) wrongly classifying those goods under heading 84-55,

° the lack of any objection from French customs based on a comparison of the goods declared with the trade description which appeared in a perfectly clear manner on the declarations,

such as to allow Hewlett Packard to be exempted, pursuant to Article 5(2) of Regulation (EEC) No 1697/79, or alternatively Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979, as amended, from post-clearance recovery of the duties in question?"

8 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

10 Accordingly, the national court must be deemed to be asking whether the conditions laid down in Article 5(2) of Regulation No 1679/79 or, alternatively, Article 13 of Regulation No 1430/79, are satisfied where a company has relied, for the purpose of the tariff classification of goods, on incorrect tariff information supplied to a company belonging to the same group as the company liable by the competent customs authorities of a Member State other than the authority competent to collect the customs duties and where the latter authority has raised no objection to that tariff classification.

The interpretation of Article 5(2) of Regulation No 1697/79

11 Article 5(2) of Regulation No 1679/79 provides:

"The competent authorities may refrain from taking action for the post-clearance recovery of import duties or export duties which were not collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter having for his part acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned".

° non-collection of the duties was a result of an error made by the competent authorities themselves;

° the person liable acted in good faith, that is to say he was not able to detect the error made by the competent authorities;

° the person liable complied with all the requirements of the rules in force regarding his customs declaration.

The error by the competent authorities

14 The national court' s question seeks to establish whether (a) an error committed not by the customs authorities responsible for collection but by those of another Member State, which provided incorrect tariff information to a company belonging to the same group as the personal liable, and (b) the failure of the authorities responsible for collection to raise any objection concerning the classification of the goods in question, even though a comparison of the declared heading and the explicit trade description of the goods would have disclosed the discrepancy, can be regarded as constituting "an error made by the competent authorities themselves".

15 As regards the error committed by customs authorities other than those responsible for effecting recovery, it follows from the judgment in Mecanarte-Metalúrgica de Lagoa, cited above, paragraphs 22 and 23, that, in principle, notice may be taken of such an error in proceedings concerning non-recovery initiated by the competent authorities in another Member State, provided that the error is one which is relevant to the recovery of the customs duties and may thus cause the person liable to entertain legitimate expectations.

16 That condition cannot be regarded as fulfilled where the information given by the customs authorities in one Member State concerning the classification of the goods in question is not binding on the customs authorities responsible for recovery of the duties. As stated in Mecanarte-Metalúrgica de Lagoa, cited above, the legitimate expectations of the person liable are worthy of protection only if the competent authorities "themselves" have provided the basis for those expectations, which presupposes that the information concerned must be recognized or endorsed by the authorities responsible for recovery.

17 No such obligation existed before the Commission, pursuant to Article 3(2) of Council Regulation No 1715/90 of 20 June 1990 on the information provided by the customs authorities of the Member States concerning the classification of goods in the customs nomenclature (OJ 1990 L 160, p. 1), made certain, by means of an implementing regulation, that binding information issued in a Member State has the same legal significance in all the other States, that is to say such information is also binding on the competent administrations in all the other Member States.

18 It follows that, since no such rules were in force at the material time in this case, the error made by the customs authorities issuing the tariff information, which were not the authorities responsible for collection, cannot be regarded as an "error made by the competent authorities themselves" within the meaning of Article 5(2) of Regulation No 1679/79.

21 It must therefore be stated in reply to the question referred that the first subparagraph of Article 5(2) of Council Regulation No 1697/79 must be interpreted as meaning that incorrect tariff information given to a trader other than the person liable for payment by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery does not constitute "an error made by the competent authorities themselves"; in contrast, such an error is made by the authorities competent to effect recovery to which that provision refers where, despite the number and size of the imports made by the person liable, those authorities raised no objection concerning the tariff classification of the goods in question, even though a comparison between the tariff heading declared and the explicit description of the goods in accordance with the indications of the nomenclature would have disclosed the incorrect tariff classification.

The impossibility of detecting the error made by the customs authorities

24 As regards the degree of care shown, if the trader concerned has doubts as to the correctness of the tariff classification of the goods in question he must make inquiries and seek the greatest clarification possible in order to ascertain whether or not his doubts are well founded (judgment in Deutsche Fernsprecher, cited above, paragraph 22). That requirement may be considered satisfied where the trader concerned had no doubts, in view of the information supplied to a company belonging to the same group as the company liable by the customs authorities of a Member State, as to the correctness of the tariff classification of the goods in question.

25 In that context, the Commission' s view that, in order to satisfy the conditions concerned, the trader must, in a case such as the present one, obtain confirmation of the information from the competent customs authorities or follow the procedure for obtaining a classification opinion in the Member State of importation is untenable. Such a requirement would not be compatible with the aim of the classification opinion procedure, which is to enable traders to ascertain the duties payable on goods which they intend importing. It is a procedure to which a trader may have recourse when he has doubts as to the tariff classification of goods, not one of which he must avail himself in order to prove that he has exercised diligence in submitting his customs declarations.

26 As regards the experience of the trader concerned, the national court must, in particular, verify whether he is professionally engaged in an activity consisting essentially in import and export operations, and whether he already had some experience of trading in the goods in question, that is to say whether in the past he had carried out similar transactions on which customs duties had been correctly calculated (see the judgment in Deutsche Fernsprecher, cited above, paragraph 21).

27 If, as in the present case, it is found that the person concerned is an experienced professional trader, it is then necessary to establish whether or not there was anything that might appear to indicate, even to such a trader, that his customs declarations were correct. That might be the case where, in circumstances such as those of this case, the trader concerned relied, for the purpose of the tariff classification of the goods in question, on information supplied by the customs authorities in a Member State, other than that of the authority competent to effect recovery, to a company belonging to the same group as the person liable and on the fact that the tariff classification indicated in the customs declaration had not been challenged over a fairly long period by the authorities competent to effect recovery.

° that the need to adopt, in view of the divergences between the various Member States concerning the tariff classification of goods, a regulation definitively clarifying the tariff heading under which the goods are to be classified constitutes strong evidence of the complexity of the problem to be resolved;

° that even an experienced trader may regard his customs declarations as correct where he relied, for the purposes of the tariff classification of the goods in question, on tariff information provided by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery to a company belonging to the same group as the person liable and where the tariff classification indicated in the customs declaration was not challenged for a relatively long period by the competent authorities;

° that the requirement of diligence on the part of the trader concerned must be regarded as satisfied where the trader had no doubt, in view of the existence of tariff information supplied to a company belonging to the same group as the person liable, as to the correctness of the tariff classification of the goods in question;

° that it is for the national court, having regard to the circumstances of the case, to establish whether, on the basis of this interpretation, the criteria for determining the extent to which the error that resulted in non-collection of the customs duties was capable of detection are satisfied.

Compliance with all the provisions of the rules in force regarding customs declarations

30 Thus clarified, that condition must be regarded as satisfied if the trader has declared the goods in question in good faith under an incorrect tariff heading, where that heading was indicated clearly and explicitly together with the description of the goods concerned, so that the competent customs authorities ought to have ascertained immediately and unambiguously that that description did not correspond to the correct tariff heading.

31 It must therefore be stated in reply to the question submitted that the requirement set out in the first subparagraph of Article 5(2) of Regulation No 1697/79 whereby the person liable should have observed all the provisions laid down by the rules in force must be regarded as satisfied where the trader, acting in good faith, declared the goods under an incorrect tariff heading, provided that the latter was clearly and explicitly indicated together with the description of the goods in question, so that the competent customs authorities should have been able immediately and unequivocally to determine the lack of conformity with the correct tariff heading.

The interpretation of Regulation No 1430/79

32 In case the conditions laid down in Article 5(2) of Regulation No 1679/79 are not satisfied, the national court wishes, in the alternative, to know whether, having regard to all the factual circumstances of the case, the conditions laid down in Article 13 of Regulation No 1430/79 are fulfilled.

33 Article 13 of Regulation No 1430/79, as amended by Article 1(6) of Council Regulation (EEC) 3069/86 of 7 October 1986 amending Regulation No 1430/79 on the repayment or remission of import or export duties (OJ 1986 L 286, p. 1), provides:

"1. Import duties may be repaid or remitted in special situations other than those referred to in Sections A to D, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

...

2. Import duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which those duties were entered in the accounts by the authority responsible for their collection.

However, the competent authorities may permit that period to be exceeded in exceptional cases where there is good reason for doing so".

34 The Commission considers that the request for a ruling on the interpretation of the abovementioned provisions of Regulation No 1430/79 is inadmissible. Those provisions are not applicable to the present case since the person liable did not lodge an application for repayment with the customs authorities within the period prescribed by that regulation.

35 It will be for the national court to ascertain whether the procedural rules laid down in Article 13(2) of Regulation No 1430/79 have been complied with. However, that question of fact has no bearing on the admissibility of the reference for a preliminary ruling, which relates only to the substantive rules laid down in the article cited above.

36 The French Government submits that a case such as the present one does not fall within the scope of Regulation No 1430/79. Unlike Regulation No 1679/79, which applies to cases where the customs duties should have been, but were not, demanded in respect of the goods, that is to say in circumstances such as those in the present case, Regulation No 1430/79 covers cases in which the competent authorities allow repayments or remissions of import or export duties where they were improperly levied or miscalculated.

37 That argument misconstrues the true scope of Regulation No 1430/79. That regulation determines neither the date on which the duties should have been entered in the accounts or the procedure to be followed for that purpose. Article 1(2)(e) of the regulation requires the existence of an "official act by which the amount of the import duties or export duties to be collected by the competent authorities is duly determined". That condition may be regarded as fulfilled where the entry in the accounts was made in connection with post-clearance recovery.

38 It is therefore necessary to examine the other preconditions for the application of Article 13 of Regulation No 1430/79, namely the existence of special circumstances and the lack of any deception or obvious negligence.

39 Commission Regulation No 3799/86 of 12 December 1986 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of Council Regulation (EEC) No 1430/79 on the repayment or remission of import or export duties (OJ 1986 L 352, p. 19) lists, in Article 4, the special situations covered by Article 13 of Regulation No 1430/79. As expressly stated in the opening paragraph of Article 4 of Regulation No 3799/86, that list is not exhaustive. It is therefore for the competent authorities to determine case by case whether a situation which, like that in the present case, is not mentioned in that list is a special situation within the meaning of the applicable Community provisions.

40 One of the factors which characterizes the situation in the present case is that, if the person liable had initially declared the goods in question under the heading subsequently found to be correct, he would have paid no duties since the goods enjoyed preferential treatment subject to a shared tariff ceiling.

41 For the reasons indicated by the Advocate General in paragraph 10 of his Opinion, such a situation cannot constitute a special situation within the meaning of Article 13 of Regulation No 1430/79. The exceeding of the tariff limits and the consequent reintroduction of the customs duties represent a normal risk run by traders, including those who have received preferential treatment following an error not discovered until after the tariff limits were exceeded.

42 The second factor characterizing the situation in this case is that the trader concerned relied on incorrect information supplied to a company belonging to the same group as the person liable by the competent customs authorities of a Member State other than that of the customs authority competence to effect recovery.

43 Such a situation may, in certain circumstances, be regarded as a special situation within the meaning of Article 13 of Regulation No 1430/79.

44 The information thus supplied may cause the trader to entertain legitimate expectations on the basis of which he may believe that he declared his goods in conformity with the tariff rules in force. In those circumstances, the obligation to pay import duties ex post facto is clearly unfair.

45 As regards the absence of any negligence or deception, it is for the national court to find whether or not, in circumstances such as those in the present case, those conditions are fulfilled.

Costs

48 The costs incurred by the French Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Third Chamber),

in answer to the question referred to it by the Tribunal d' Instance of the Seventh Arrondissement, Paris, by judgment of 24 September 1991, amended by judgment of 22 October 1991, hereby rules:

1. The first subparagraph of 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 must be interpreted as meaning that incorrect tariff information given to a trader other than the person liable for payment by the customs authorities of a Member State other than that of the authorities empowered to effect post-clearance recovery does not constitute "an error made by the competent authorities themselves"; on the other hand, such an error is made by the authorities competent to effect recovery to which that provision refers where, despite the number and size of the imports made by the person liable, those authorities raised no objection concerning the tariff classification of the goods in question, even though a comparison between the tariff heading declared and the explicit description of the goods in accordance with the indications of the nomenclature would have disclosed the incorrect tariff classification.

2. In order to determine whether there has been "an error ... which could not reasonably have been detected by the person liable" within the meaning of Article 5(2) of Regulation No 1697/79, account must be taken, in particular, of the nature of the error, of the commercial experience of the trader and of the diligence shown by him. In that regard, it is appropriate to make clear:

that the need to adopt, in view of the divergences between the various Member States concerning the tariff classification of goods, a regulation definitively clarifying the tariff heading under which the goods are to be classified constitutes strong evidence of the complexity of the problem to be resolved;

that even an experienced trader may regard his customs declarations as correct where he relied, for the purposes of the tariff classification of the goods in question, on tariff information provided by the customs authorities of a Member State other than that of the authority competent to effect post-clearance recovery to a company belonging to the same group as the person liable and where the tariff classification indicated in the customs declaration was not challenged for a relatively long period by the competent authorities;

that the requirement of diligence on the part of the trader concerned must be regarded as satisfied where the trader had no doubt, in view of the existence of tariff information supplied to a company belonging to the same group as the person liable, as to the correctness of the tariff classification of the goods in question;

that it is for the national court, having regard to the circumstances of the case, to establish whether, on the basis of this interpretation, the criteria for determining the extent to which the error that resulted in non-collection of the customs duties was capable of detection are satisfied.

3. The requirement imposed by the first subparagraph of Article 5(2) of Regulation No 1697/79 whereby the person liable should have observed all the provisions laid down by the rules in force must be regarded as satisfied where the trader, acting in good faith, declared the goods under an incorrect tariff heading, provided that the latter was clearly and explicitly indicated together with the description of the goods in question, so that the competent customs authorities should have been able immediately and unequivocally to determine the lack of conformity with the correct tariff heading.

4. For the purposes of Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties, the fact that a trader has relied on incorrect information supplied to a company belonging to the same group as the person liable by a competent customs authority in a Member State other than that of the customs authority competent to effect post-clearance recovery, may constitute a special situation of the kind referred to in that article. It is for the national court to establish whether all the other conditions to which the application of Article 13 is subject, namely the absence of manifest error or malpractice and due compliance with procedural rules, have been satisfied.