Avis juridique important

Judgment of the Court (Sixth Chamber) of 16 July 1992. - Belgian State v Société coopérative Belovo. - Reference for a preliminary ruling: Tribunal de première instance de Neufchâteau - Belgium. - Consequences of the automatic correction of an erroneous import licence. - Case C-187/91. European Court reports 1992 Page I-04937

Summary Parties Grounds Decision on costs Operative part

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1. Agriculture ° Common organization of the markets ° Import and export licences ° Import licences wrongly issued as a result of an administrative error ° Action for damages brought by the holder before the national court ° Whether permissible in the light of Regulation No 3719/88

(Commission Regulation No 3719/88, Arts 24 and 25)

2. European Communities' own resources ° Post-clearance recovery of import or export duties ° Scope of Regulation No 1697/79 ° Administrative error which could not "reasonably have been detected by the person liable" ° Assessment criteria

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

1. Articles 24 and 25 of Regulation No 3719/88 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products, which authorize the agency issuing a licence or certificate to correct it, do not preclude the holder of import licences from bringing an action for damages against the issuing agency, in accordance with national law, where it is agreed that those licences should not have been issued, in the course of which regard is had inter alia to the trader' s legitimate expectations in respect of those licences.

2. An action for the post-clearance recovery of import levies which have not been paid on account of an error made by the competent authorities of a Member State when issuing import licences falls within the scope of Article 5 of Regulation No 1697/79 on the post-clearance recovery of import or export duties.

In order to assess whether there has been an "error made by the competent authorities themselves which could not reasonably have been detected by the person liable", within the meaning of Article 5(2), regard must be had inter alia to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised. It is for the national court to appraise whether or not, on the basis of that interpretation, the error which resulted in the duties not being collected was capable of being detected by the person liable.

In Case C-187/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Première Instance, Neufchâteau, for a preliminary ruling in the proceedings pending before that court between

Belgian State

and

Société Coopérative Belovo,

on the interpretation of Articles 24 and 25 of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 1988 L 331, p. 1),

THE COURT (Sixth Chamber),

composed of: F.A. Schockweiler, President of the Chamber, G.F. Mancini, P.J.G. Kapteyn, M. Diez de Velasco and J.L. Murray, Judges,

Advocate General: C. Gulmann,

Registrar: D. Triantafyllou, Administrator,

after considering the written observations submitted on behalf of:

° the Belgian State, by Serge Dufrene, of the Brussels Bar;

° Belovo, by Jean-Paul Hordies, of the Brussels Bar;

° the Commission, by Xénophon A. Yataganas, of its Legal Service, acting as Agent;

having regard to the Report for the Hearing,

after hearing the oral observations of the Belgian State, Belovo and the Commission at the hearing on 19 March 1992,

after hearing the Opinion of the Advocate General at the sitting on 24 June 1992,

gives the following

Judgment

1 By judgment of 10 July 1991, received at the Court Registry on 24 July 1991, the Tribunal de Première Instance (Court of First Instance), Neufchâteau, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 24 and 25 of Commission Regulation (EEC) No 3719/88 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 1988 L 331, p. 1).

2 That question was raised in proceedings between the Belgian State and the Société Coopérative Belovo ("Belovo"), established in Bastogne, concerning a demand for payment of additional import levies on eggs originating in non-member countries.

3 Belovo had requested and obtained from the Belgian authorities, for the period from 28 November 1988 to 21 September 1989, nine advance fixing certificates in respect of levies on imports of eggs originating in non-member countries. On 3 October 1989 the authorities requested the return of five of the certificates, in accordance with the procedure laid down in Regulation No 3719/88, on the ground that Regulation (EEC) No 2771/75 of the Council of 29 October 1975 on the common organization of the market in eggs (OJ 1975 L 282, p. 49) does not permit the issue of advance fixing certificates in respect of levies on imports of eggs originating in non-member countries. It is common ground that the Community rules in force at the material time did not permit the issue of the certificates. Belovo returned the certificates, as requested.

4 Belovo, bound by contracts made in August and September 1989, that is to say prior to the request for the return of the said certificates, and having obtained the documents needed for importation, placed the eggs in customs' warehouses as from October 1989. By two national judicial decisions, Belovo was authorized to import the eggs on payment of the levies at the rate current on the date stated on the advance fixing certificates returned.

5 The Belgian State established that Belovo had paid only the import levies referred to in the certificates which were lower than those calculated on the basis of the actual date of importation and claimed payment of the difference between the two amounts. In support of their claim, the Belgian authorities consider that Articles 24 and 25 of Regulation No 3719/88, which provide inter alia for the possibility of correcting errors, preclude the holders of certificates from relying on vested rights. Furthermore they consider that Belovo, a well-informed trader, could not have been misled by certificates vitiated by manifest irregularities.

6 In order to counter that claim, Belovo argued inter alia, before the Tribunal de Première Instance de Neufchâteau, that it had acted in good faith, and that it was not responsible for the erroneous issue of certificates which had prompted it to assume substantial obligations. Moreover, Regulation No 3719/88 did not exclude liability on the part of the agency issuing the certificates.

7 Articles 24 and 25 of Regulation No 3719/88 are drafted as follows:

"Article 24

1. Entries made on licences, certificates or extracts may not be altered after their issue.

2. Where the accuracy of entries on the licence, certificate or extract is in doubt, such licence, certificate or extract shall, on the initiative of the party concerned or of the competent authorities of the Member State concerned, be returned to the issuing agency.

If the issuing agency considers a correction to be required, it shall withdraw the extract or the licence or certificate as well as any extracts previously issued and shall issue without delay either a corrected extract or a corrected licence or certificate and the corrected extracts corresponding thereto. On such further documents, which shall include the entry 'licence (or certificate) corrected on ...' or 'extracts corrected on ...' , the former attributions shall be reproduced, as appropriate, on each copy.

Where the issuing agency does not consider it necessary to correct the licence or certificate or the extract, it shall enter thereon the endorsement 'verified on ... in accordance with Article 24 of Regulation (EEC) No 3719/88' and apply its stamp.

Article 25

1. The titular holder must, at the request of the issuing agency, return to that agency the licence or certificate and/or the extracts therefrom.

2. Where a disputed document is returned or held in accordance with the provisions of this article or Article 24, the competent national authorities shall on request give the party concerned a receipt."

8 The Tribunal de Première Instance de Neufchâteau stayed the proceedings and referred the following question to the Court for a preliminary ruling:

"Does Article 24 of Commission Regulation (EEC) No 3719/88 of 16 November 1988, which provides that if the issuing agency (of an import licence or certificate) considers a correction to be required it is to withdraw the extract or the licence or certificate as well as any extracts previously issued and is to issue without delay either a corrected extract or a corrected licence or certificate and the corrected extracts corresponding thereto, and Article 25 thereof, which provides that the titular holder must, at the request of the issuing agency, return to that agency the licence or certificate and/or the extracts therefrom, mean:

(1) that a trader who has used incorrect certificates must pay the amounts due in respect of levy increases arising after the issue of an advance fixing certificate granted in error;

(2) that if an importer of eggs, a product covered by a specific regulation, has benefited, as a result of an error, from the advance fixing system, where the import contracts were entered into before the withdrawal of the certificates and the importation effected after the withdrawal of the certificates pursuant to an urgent interim court order authorizing the importation of warehoused goods on account of their perishability, is that trader required subsequently to pay the amounts which would have been payable had there been no error in the issuing of the certificates;

(3) that the trader may benefit from the advance fixing system for current contracts and for orders placed, or on the contrary that he must pay levy increases arising after the advance fixing;

(4) that the trader may object to changes in the amount payable on the incorrect certificate or may hold the issuing agency liable; or

(5) that in the event of an error made by the administration in drawing up an import licence or certificate, the issuing agency may not be claimed to have misled a trader?"

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written 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 It appears from the order for reference that the national court seeks to determine essentially whether, in the present circumstances, Articles 24 and 25 of Regulation No 3719/88 preclude Belovo from relying on a legitimate expectation, based on certificates which all parties agree should not have been issued, in order to refuse payment of additional import levies, and, if appropriate, to render the agency which issued the irregular certificates liable.

11 In that connection, it should be noted that Articles 24 and 25 of Regulation No 3719/88, expressly referred to in the questions from the national court, concern in particular the procedure to be followed where the accuracy of entries on the certificate is in doubt and do not preclude an action for damages brought, in accordance with national law, by the holder of such certificates against the issuing agency. However, those articles do not cover the potential financial consequences of withdrawing certificates which should not have been issued.

15 Article 5 provides as follows:

"1. No action may be taken by the competent authorities for recovery where the amount of the import duties or export duties subsequently found to be lower than the amount legally due was calculated:

° either on the basis of information given by the competent authorities themselves which is binding on them,

° or on the basis of provisions of a general nature subsequently invalidated by a court decision.

2. 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 ..."

16 It follows from Article 5(2) of Regulation No 1697/79 that its application is conditional inter alia on the error made by the competent authorities not being reasonably capable of being detected by the person liable. The circumstances set out in point 5 of the national court' s question relate to that condition.

18 As regards the precise nature of the error, the question to be determined is whether the rules concerned are complex or, on the contrary, simple enough for an examination of the facts to make an error easily detectable. In a case such as this, where the trader has, in the course of several operations and over a long period of time, been issued with nine certificates each constituting confirmation that the view which subsequently proved to be erroneous was correct, and on which the contested payments were based, the repetition of the error by the customs authority is evidence both of the complex nature of the problem to be resolved (see inter alia Case C-64/89 Hauptzollamt Giessen v Deutsche Fernsprecher [1990] ECR I-2535, paragraph 20) and of lack of negligence on the trader' s part. Furthermore, the fact that the imports occurred after the withdrawal of the certificates, but by virtue of contractual obligations entered into in good faith prior to the withdrawal, does not affect the consequences flowing from the assessment of the nature of the error.

19 As far as the professional experience of the trader is concerned, it is for the national court to determine whether or not the trader involved is one whose activity essentially consists in import and export operations, and whether he already had some experience of trading in the goods in question, particularly whether he had in the past carried out similar transactions on which levies had been correctly calculated (see inter alia Case C-64/89 Deutsche Fernsprecher, cited above, paragraph 21).

Costs

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

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question submitted to it by the Tribunal de Première Instance, Neufchâteau, by judgment of 10 July 1991, hereby rules:

Articles 24 and 25 of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products do not preclude the holder of import licences from bringing an action for damages against the issuing agency, in accordance with national law, where it is agreed that those licences should not have been issued, in the course of which regard is had inter alia to the trader' s legitimate expectations in respect of those licences. An action for post-clearance recovery of part of the import levies, such as that at issue in the main proceedings, falls within the scope of Article 5 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. It is for the national court to determine whether all the conditions prescribed for the application of Article 5(2) are fulfilled.