Beruflich Dokumente
Kultur Dokumente
C
Caasseess ooppeenneedd iinn 11999955--22001100
Updated 16/04/2010
Case C-386/08, 25 February 2010
Brita GmbH v Hauptzollamt Hamburg-Hafen,
The customs authorities of the importing Member State may refuse to grant the
preferential treatment provided for under the Euro-Mediterranean Agreement
establishing an association between the European Communities and their Member States,
of the one part, and the State of Israel, of the other part, signed in Brussels on 20
November 1995, where the goods concerned originate in the West Bank. Furthermore,
the customs authorities of the importing Member State may not make an elective
determination, leaving open the questions of which of the agreements to be taken into
account – namely, the Euro-Mediterranean Agreement establishing an association
between the European Communities and their Member States, of the one part, and the
State of Israel, of the other part, and the Euro-Mediterranean Interim Association
Agreement on trade and cooperation between the European Community, of the one part,
and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian
Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24
February 1997 – applies in the circumstances of the case and of whether proof of origin
falls to be issued by the Israeli authorities or by the Palestinian authorities.
For the purposes of the procedure laid down in Article 32 of Protocol No 4 appended to
the Euro-Mediterranean Agreement establishing an association between the European
Communities and their Member States, of the one part, and the State of Israel, of the
other part, the customs authorities of the importing State are not bound by the proof of
origin submitted or by the reply given by the customs authorities of the exporting State
where that reply does not contain sufficient information, for the purposes of Article 32(6)
of that protocol, to enable the real origin of the products to be determined. Furthermore,
the customs authorities of the importing State are not obliged to refer to the Customs
Cooperation Committee set up under Article 39 of that protocol a dispute concerning the
territorial scope of that agreement.
____________________________________________________________________
Case C-373/08, 11 February 2010
The separation, crushing and purification of silicon metal blocks and the subsequent
sieving, sorting and packaging of the silicon grains resulting from the crushing, as
carried out in the main proceedings, do not constitute origin-conferring processing or
working for the purposes of Article 24 of Council Regulation (EEC) No 2913/92 of 12
October 1992 establishing the Community Customs Code.
The examination of the second question raised by the referring court has not revealed
any factors of such a kind as to affect the validity of Council Regulation (EC) No
398/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of silicon
originating in the People’s Republic of China.
____________________________________________________________________
C-264/08, 28 January 2010
Community Customs Code – Customs debt – Amount of duty – Articles 217 and 221 –
Communities’ own resources – Regulation (EC, Euratom) No 1150/2000 – Article 6 −
Requirement of entry in the accounts of the amount of duty before it is communicated to
the debtor – Definition of ‘legally owed’
____________________________________________________________________
C-430/08 and C-431/08 (Joined cases) 14 January 2010
Terex Equipment Ltd (C-430/08), FG Wilson (Engineering) Ltd (C-431/08)
Caterpillar EPG Ltd (C-431/08) v The Commissioners for Her Majesty’s
Revenue & Customs,
The use in the export declarations at issue in the main proceedings of customs
code 10 00 indicating the export of Community goods, instead of code 31 51 used
for goods for which duties are suspended under the inward processing procedure,
gives rise to a customs debt pursuant to Article 203(1) of Council Regulation
(EEC) No 2913/92 of 12 October 1992 establishing the Community Customs
Code and the first paragraph of Article 865 of Commission Regulation (EEC) No
2454/93 of 2 July 1993 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code, as amended
by Commission Regulation (EC) No 1677/98 of 29 July 1998.
_________________________________________________________________
C-410/08 to C-412/08 (Joined Cases), 17 December 2009
Tariff classification - Tariff headings 1515, 1517, 2106 and 3004 - Gelatin
capsules - Fish oil, wheat-germ oil and black cumin oil - Concept of
'packaging')
This reference for a preliminary ruling concerns the interpretation of Article 24 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code
(OJ 1992 L 302, p. 1) (‘the Customs Code’), for the purpose of determining the origin of goods
coming under heading 7312 of the Combined Nomenclature, constituting Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on
the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation
(EC) No 1719/2005 of 27 October 2005 (OJ 2005 L 286, p. 1) (‘the CN’).
With regard to goods classified under heading 7312 of the Combined Nomenclature
constituting Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1719/2005 of 27 October 2005, ‘substantial processing or working’ within
the meaning of Article 24 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, may cover not only such processing or working as
leads to the goods which have undergone the process being classified under a different heading
of the Combined Nomenclature, but also such processing or working as results, without such a
change of heading, in the creation of a product with properties and a composition of its own
which it did not have before the process.
Case C-140/08 29 October 2009.
Reference for a preliminary ruling: Tallinna Halduskohus – Estonia concerning the interpretation
of Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by
Commission Regulation (EC) No 1789/2003 of 11 September 2003 (OJ 2003 L 281, p. 1), and
the interpretation of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on
transitional measures to be adopted in respect of trade in agricultural products on account of the
accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland,
Slovenia and Slovakia (OJ 2003 L 293, p. 3), as amended by Commission Regulation (EC)
No 230/2004 of 10 February 2004 (OJ 2004 L 39, p. 13, ‘Regulation No 1972/2003’).
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission Regulation
(EC) No 1789/2003 of 11 September 2003, must be interpreted as meaning that products such
as those at issue in the main proceedings constituted of frozen mechanically separated meat
obtained after the mechanical deboning of fowls and destined for human consumption must be
classified in subheading 0207 14 10 of the Combined Nomenclature.
Regulation No 1972/2003 does not preclude the levying of a charge on an operator’s surplus
stock even if he is able to prove that he obtained no advantage when marketing that stock
after 1 May 2004.
___________________________________________________________________________
C-522/07 and C-65/08, 29 October 2009.
_____________________________________________________________________________
Case C-141/08 1 October 2009.
Foshan Shunde Yongjian Housewares & Hardware Co. Ltd v Council of the European
Union.
Sets aside the judgment of the Court of First Instance of 29 January 2008 in Case T-206/07
Foshan Shunde Yongjian Housewares & Hardware v Council in so far as the Court of First
Instance found that Foshan Shunde Yongjian Housewares & Hardware Co. Ltd’s rights of
defence were not adversely affected by the infringement of Article 20(5) of Council Regulation
(EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries
not members of the European Community;
________________________________________________________________
T-385/05. 23 September 2009.
Customs union - External Community transit operations - Consignments of tobacco and ethyl
alcohol for third countries - Fraud - Claim for remission of import duties - Article 239 of
Regulation (EEC) No 2913/92 - Article 905 of Regulation (EEC) No 2454/93 - Fairness clause
- Existence of a special situation - Comprehensive guarantee.
________________________________________________________________
C-535/06, 3 September 2009.
Appeal - Dumping - Imports of recordable compact discs originating in India - Regulation (EC)
No 960/2003 - Calculation of the amount of countervailing subsidy - Determination of injury -
Article 8(7) of Regulation (EC) No 2026/97.
By its appeal, Moser Baer India Ltd seeks to have set aside the judgment of the Court of First
Instance of the European Communities of 4 October 2006 in Case T-300/03 Moser Baer India v
Council [2006] ECR II-3911 (‘the judgment under appeal’), by which the Court of First
Instance dismissed the appellant’s action for annulment of Council Regulation (EC) No
960/2003 of 2 June 2003 imposing a definitive countervailing duty on imports of recordable
compact discs originating in India (OJ 2003 L 138, p. 1; ‘the contested regulation’) in so far as
it applies to the appellant.
Appeal dismissed
___________________________________________________________
C-124/081 16 July 2009.
Regulation (EEC) No 2913/92 - Community Customs Code - Customs debt - Amount of duty -
Communication to the debtor - Act that could give rise to criminal court proceedings.
___________________________________________________________
1
Joined cases C-124/08 and C-125/08
C-125/08. 16 July 2009
Regulation (EEC) No 2913/92 - Community Customs Code - Customs debt - Amount of duty
- Communication to the debtor - Act that could give rise to criminal court proceedings.
2. Article 221(3) of Regulation No 2913/92 must be interpreted as meaning that the customs
authorities may, after the expiry of the period of three years from the date on which the
customs debt was incurred, validly communicate to the debtor the amount of duty legally due,
where the exact amount of that duty could not be determined by those authorities as a result
of an act that could give rise to criminal court proceedings. That includes cases where the
debtor has not committed that act.
____________________________________________________________
C-126/08 16 July 2009
Distillerie Smeets Hasselt NV v Belgische Staat and Others, Belgische Staat v Bollen,
Mathay & Co. BVBA and Louis De Vos v Belgische Staat.
Article 217 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code must be interpreted as meaning that Member States can provide
that the entry in the accounts of the amount of duty resulting from a customs debt may be
effected by the entry of that amount on a record which is drawn up by the competent customs
authorities and establishes an infringement of the applicable customs legislation.
____________________________________________________________
C-56/08 16 July 2009.
Reference for a preliminary ruling under Article 234 EC, from the Tallinna Halduskohus
proceedings between Maksu- ja Tolliameti Põhja maksu- ja tollikeskus (‘the PMTK’), the
Estonian tax and customs office, and Pärlitigu OÜ (‘Pärlitigu’), a company incorporated
under Estonian law, concerning a tax notice issued to the latter.Common Customs Tariff
____________________________________________________________
Case C-7/08, 2 July 2009.
Relief from import duties - Regulation (EEC) No 918/83 - Article 27 - Goods of a negligible
individual value dispatched as a grouped consignment - Consignments dispatched direct from
a third country to a consignee in the Community.
____________________________________________________________
C-302/08, 2 July 2009
Article 5(4) of Council Regulation (EC) No 1383/2003 of 22 July 2003 concerning customs
action against goods suspected of infringing certain intellectual property rights and the
measures to be taken against goods found to have infringed such rights, read in the light of
Article 146 of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community
trade mark, as amended by Council Regulation (EC) No 1992/2003 of 27 October 2003, is to
be interpreted as allowing the holder of an internationally registered trade mark to secure
action by the customs authorities of one or more other Member States, besides that of the
Member State in which it is lodged, just like the proprietor of a Community trade mark.
_______________________________________________________________
Case C-173/08 18 June 2009.
Common Customs Tariff - Tariff headings - Cooling systems for computers composed
of a heat sink and a fan - Classification in the Combined Nomenclature.
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 1789/2003 of 11 September 2003, must be interpreted as meaning
that goods, such as those at issue in the main proceedings, made up of a heat sink and
a fan and which are solely intended to be incorporated in a computer must be
classified under subheading 8473 30 90 of the Combined Nomenclature in Annex I to
that regulation.
____________________________________________________________
Case C-16/08 11 June 2009.
____________________________________________________________
Case C-158/08 4 June 2009.
____________________________________________________________
T-159/09 25 May 2009
____________________________________________________________
Case C-161/08 14 May 2009.
_____________________________________________________________
Case C-150/08 7 May 2009.
_____________________________________________________________
C-459/07 2 April 2009.
Community Customs Code - Article 202 and point (d) of the first paragraph
of Article 233 - Incurrence of a customs debt - Unlawful introduction of
goods - Seizure and confiscation - Extinction of the customs debt - Moment
at which seizure must take place.
1. Article 202 and point (d) of the first paragraph of Article 233 of Council
Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code, as amended by Regulation (EC) No 2700/2000
of the European Parliament and of the Council of 16 November 2000, must
be interpreted as meaning that, in order to lead to the extinction of the
customs debt, the seizure of goods unlawfully introduced into the customs
territory of the Community must take place before those goods go beyond
the first customs office situated inside that territory.
_____________________________________________________________
C-134/08 2 April 2009
_____________________________________________________________
C-256/07. 19 March 2009.
_____________________________________________________________
C-376/07- 19 February 2009-
1. Monitors such as those at issue in the main proceedings are not excluded
from classification in subheading 8471 60 90, as units of the kind used
‘principally’ in an automatic data-processing system within the meaning of
Note 5(B)(a) to Chapter 84 of the combined nomenclature constituting
Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
tariff and statistical nomenclature and on the Common Customs Tariff, as
amended by Commission Regulation (EC) No 1789/2003 of 11 September
2003, solely because they are capable of displaying signals coming both
from an automatic data-processing machine and from other sources.
_____________________________________________________________
C-93/08 -12 February 2009-
The initiation, with the agreement of an intellectual property right-holder and of the
importer, of the simplified procedure laid down in Article 11 of Council Regulation (EC)
No 1383/2003 of 22 July 2003 concerning customs action against goods suspected of
infringing certain intellectual property rights and the measures to be taken against goods
found to have infringed such rights, does not deprive the competent national authorities
of the power to impose, on the parties responsible for importing those goods into the
Community customs territory, a ‘penalty’, within the meaning of Article 18 of that
regulation, such as an administrative fine.
_____________________________________________________________
C-349/07 18 December 2008.
Community Customs Code - Principle of respect for the rights of the defence -
Post-clearance recovery of customs import duties.
2. It is for the national court before which the case has been brought to ascertain,
having regard to the specific circumstances of the case, whether the period actually
allowed to that importer made it possible for it to be given a proper hearing by the
customs authorities.
3. The national court must also ascertain whether, in the light of the period which
elapsed between the time when the authorities concerned received the importer’s
observations and the date on which they took their decision, they can be deemed to
have taken due account of the observations sent to them.
_____________________________________________________________
T-144/05. 18 December 2008.
The Court:
…………
________________________________________________________________
C-362/07 and C-363/07 – 11 December /08 –
Kip Europe SA and Others (C-362/07) and Hewlett Packard International SARL
(C-363/07) v Administration des douanes – Direction générale des douanes et droits
indirects
2. If the copying function performed by the machines at issue in the main proceedings is
secondary in relation to the printing and electronic scanning functions, they must be
considered units of automatic data-processing machines within the meaning of Note 5(B)
to Chapter 84 of the combined nomenclature constituting Annex I to Regulation No
2658/87, as amended by Regulation No 1719/2005, which units, by application of Note
5(C) to that chapter, if they are presented in isolation, fall within heading 8471. In such a
case, the relevant subheading must be determined in accordance with Note 3 to Section
XVI of the said nomenclature. However, if the importance of that copying function is
equivalent to that of the other two functions, those machines must be classified, by
application of General Rule 3(b) of the General rules for the interpretation of that
nomenclature, under the heading corresponding to the module which gives those
machines their essential character. If such identification proved impossible, they must be
classified under heading 9009 in accordance with General Rule 3(c).
3. Examination of the fifth questions referred has not raised any factor liable to affect the
validity of point 4 of the Annex to Commission Regulation (EC) No 400/2006 of 8 March
2006 concerning the classification of certain goods in the Combined Nomenclature.
______________________________________________________________________
T-210/07 3 December 2008
Action for annulment – Common Customs Tariff – Issue of binding tariff information –
Power of the national customs authorities – Non-actionable measure – Inadmissibility
_____________________________________________________________
C-403/07 – 27 November 08
The Combined Nomenclature which is laid down in Annex I to Council Regulation (EEC)
No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, in the version applicable in 2001, namely that deriving from
Commission Regulation (EC) No 2388/2000 of 13 October 2000 amending Annex I to
Regulation No 2658/87, must be interpreted as meaning that bars of tungsten or
molybdenum ‘obtained simply by sintering’ fall respectively under its subheadings 8101
91 10 and 8102 91 10. Such bars, which consist of the metals in question in their
unwrought form and not of articles thereof, cannot be processed, by being broken up or
shattered, into scrap falling respectively under subheadings 8101 91 90 and 8102 91 90
of that Combined Nomenclature.
________________________________________________________________________
C-38/07 P – 20 November /08
________________________________________________________________________
C-375/07 – 20 November 08
Staatssecretaris van Financiën v Heuschen & Schrouff Oriëntal Foods Trading BV.
1. Sheets prepared from rice flour, salt and water which are then dried, but do not
undergo any heat treatment, are covered by subheading 1905 90 20 of the Combined
Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on
the tariff and statistical nomenclature and on the Common Customs Tariff, in the version
resulting from Commission Regulation (EC) No 1624/97 of 13 August 1997.
2. Examination of the question referred has disclosed no factor of such a kind as to affect
the validity of Commission Regulation (EC) No 1196/97 of 27 June 1997 concerning the
classification of certain goods in the combined nomenclature.
3. Where an application for remission of import duties has been submitted to the
Commission of the European Communities by a Member State under Article 239 of
Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community
Customs Code, as amended by Regulation (EC) No 82/97 of the European Parliament
and of the Council of 19 December 1996, and the Commission has already adopted a
decision containing assessments of fact and law in a particular case concerning import
transactions, such assessments bind all the authorities of the Member State to which that
decision was addressed, in accordance with Article 249 EC, including the courts which
have to assess that case under Article 220 of that regulation.
If the importer has, within the period prescribed in the fifth paragraph of Article 230 EC,
brought an action for annulment of a decision of the Commission of the European
Communities in respect of an application for remission of import duties pursuant to
Article 239 of that regulation, it is for the national court to decide whether to stay the
proceedings until a definitive decision has been given in the action for annulment or to
refer itself a question to the Court of Justice of the European Communities for a
preliminary ruling as to validity.
_______________________________________________________________________
C-248/07 – 6 November 08 –
Regulation implementing the Community Customs Code – Articles 291 and 297 –
Favourable tariff treatment – End-use – Concept of ‘person importing the goods or
having them imported for free circulation’ – Concept of ‘transfer of goods within the
Community’ – Concept of ‘transferee’
Article 291(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code, as amended by Commission Regulation No 89/97 of 20
January 1997, must be interpreted as meaning that the concept of ‘person importing the
goods or having them imported for free circulation’ contained therein refers to the
person for whom the goods are destined and who intends to assign them to the prescribed
end-use, irrespective of whether he makes the customs declaration himself or has that
done by a representative within the meaning of Article 5 of Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community Customs Code. That concept
does not refer to the representative of that person before the customs authorities,
disregarding those cases in which that person is deemed to act in his own name and on
his own behalf pursuant to the second subparagraph of Article 5(4) of Regulation No
2913/92 and who must therefore be considered an importer.
Article 297(1) of Regulation No 2454/93, as amended by Regulation No 89/97, must be
interpreted as meaning that there has been no transfer of goods within the Community in
a situation where goods are imported into Belgium then transported to the Netherlands, if
the person authorised acts on behalf of the ultimate importer, which is for the national
court to ascertain. The mere fact that the goods were imported into and cleared through
customs in Belgium then transported to the Netherlands is irrelevant to the establishment
of the existence of a transfer within the meaning of that provision. Where goods are
transferred, the transferee must hold an authorisation issued in accordance with Article
291 of that regulation.
Article 297(1) of Regulation No 2454/93, as amended by Regulation No 89/97, must be
interpreted as meaning that the concept of ‘transferee’ contained therein does not refer
to a customs agent who carries out customs formalities on behalf of the importer.
________________________________________________________________________
T-51/07 – 8 October 08 –
The applicant challenged Commission Decision C(2006) 5789 final of 4 December 2006
finding, first, that, as regards a specified amount, the subsequent entry into the accounts
of import duties was not justified and, secondly, that, as regards a further amount, the
subsequent entry into the accounts of import duties was justified and that the remission of
those duties in a particular case was not justified (request of the Republic of Austria). In
this decision directed at the Republic of Austria, the Commission came to the conclusion,
applying Regulation (EEC) No 2913/92 1 ("the Customs Code of the Communities") and
Regulation (EEC) No 2454/93, 2 that the subsequent entry into the accounts of import
duties amounting to EUR 110 937.60 should not be discounted and that the remission of
those import duties was not justified.
In support of its claim, the applicant argued that the contested decision was unlawful,
because the conditions for the discounting of the subsequent entry of the import duties in
the accounts under Article 220(2)(b) of the Customs Code of the Communities or for the
remission of the subsequently entered import duties under Article 239 of the Customs
Code of the Communities were satisfied.
The action was dismissed.
________________________________________________________________________
C-411/07 – 2 October 08
Appeal dismissed
________________________________________________________________
C-204/07 – 25 July /08 –
In support of its appeal, the applicant put forward three pleas in law, alleging
infringement of its rights of defence, of Article 239 of the CCC and of Article 220(2)(b) of
the CCC respectively.
The Court, based on Article 239 of the CCC, sets aside the judgment of the Court of First
Instance of 6 February 2007 in Case T-23/03 CAS v Commission and annuls Article 2 of
the Decision of the Commission of 18 October 2002 (REC 10/01).
_______________________________________________________________________
T-165/08 – 23 July /08
Preliminary ruling Hof van beroep te Antwerpen (Belgium)) - Gerlach & Co. V v
Belgische Staat of the Court
– Community Customs Code – Customs debt: Article 104(3), first ubparagraph of the
Rules of Procedure — Community Customs Code — Concepts of ‘entry in the accounts’
and ‘communication’ of the amount of duty to the debtor — Prior entry in the accounts of
the amount of the customs debt — Recovery of the customs debt.
_____________________________________________________________________
C-312/07 5 June 2008.
_____________________________________________________________________
C-165/07 – 22 May 08 –
1. In order to verify whether the Member State which recovered customs duties has
jurisdiction, it is for the referring court to determine whether, at the time when it came
to light that the consignment had not been presented at the office of destination, it was
possible to establish the place where the offence or irregularity occurred. If that is the
case, the Member State in which the first offence or irregularity capable of being
classified as a removal from customs surveillance was committed can be identified as
the State with jurisdiction to recover the customs debt, pursuant to Articles 203(1) and
215(1) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code. On the other hand, if the place where the offence or
irregularity was committed cannot be thus established, the Member State to which the
office of departure belongs has jurisdiction to recover the customs duties, in accordance
with Articles 378 and 379 of Commission Regulation (EEC) No 2454/93 of 2 July 1993
laying down provisions for the implementation of Regulation No 2913/92.
2. Where a consignment has not been presented at the office of destination and the place
of the offence or irregularity cannot be established, it is for the office of departure alone
to make the notification required within the 11-month and 3-month time-limits laid down
by Article 379(1) and (2) of Regulation No 2454/93.
3. It is not contrary to the principle of proportionality to hold a customs clearance agent,
in his capacity as principal, liable for a customs
______________________________________________________________________
C-263/06, 28 February 2008.
If the customs authorities have reasonable doubts as to the accuracy of the declared
value and their doubts are confirmed after they have asked for additional
information or documents and have provided the person concerned with a
reasonable opportunity to respond to the grounds for those doubts, without it being
possible to determine the price actually paid or payable, they may, in accordance
with Article 31 of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code, calculate the customs value for the
purpose of applying the anti-dumping duty established by Decision No 67/94 by
reference to the price agreed for the goods in question in the most recent sale prior
to that on the basis of which the customs declaration was made and in regard to
which the customs authorities have no objective reason to doubt its accuracy.
__________________________________________________________________
C-398/05. 28 February 2008.
Consideration of the question referred has disclosed nothing capable of affecting the
validity of Council Regulation (EC) No 1599/1999 of 12 July 1999 imposing a definitive
countervailing duty and collecting definitively the provisional duty imposed on stainless
steel wires with a diameter of 1 mm or more originating in India and terminating the
proceeding concerning imports of stainless steel wires with a diameter of 1 mm or more
originating in the Republic of Korea.
_________________________________________________________________
C-262/07 – 19 February 08 –
In support of its appeal, the applicant raised complaints, which relate to the infringement
by the order under appeal of procedural requirements of Community law, by which its
interests were prejudiced and which went so far as to affect the content of the order
under appeal. They related to the observance of the right to be heard and measures of
inquiry.
The appeal was dismissed.
_________________________________________________________________
T-82/06 – 19 February 08 –
The applicant is concerned by the contested regulation only in its objective capacity as
an importer of LCD monitors such as those referred to in the table annexed to that
regulation, in the same way as any operator, actually or potentially, in an identical
situation.
It follows that the contested regulation is not of individual concern to the applicant and
that the action must therefore be dismissed as inadmissible.
_________________________________________________________________
C-62/06 – 18 December 07 –
___________________________________________________________________
C-526/06 – 13 December 07 –
Reference for a preliminary ruling: VAT and Duties Tribunal, London - United Kingdom.
1. Examination of the first question has disclosed nothing capable of affecting the validity
of the provisions in column 3 under heading 8528 of the Combined Nomenclature,
mentioned in Annex 11 to Commission Regulation (EEC) No 2454/93 of 2 July 1993
laying down provisions for the implementation of Council Regulation (EEC) No 2913/92
establishing the Community Customs Code.
___________________________________________________________________
C-161/06 – 11 December 07 –
First paragraph of Article 104(3) of the Rules of Procedure – Community Customs Code
– Inward processing – Association Agreement – Prior export of rice to a non-member
country bound by a preferential customs agreement – Article 216 of the Customs Code
Article 216 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the
European Parliament and of the Council of 16 November 2000 is applicable to the
inward processing operations referred to in Article 115(1)(b) of that regulation in which
compensating products have been exported from the Community before importation of
the import goods.
_______________________________________________________________________
C-486/06 – 6 December 07 –
Pick-ups such as those at issue in the main proceedings which consist, on the one hand,
of an enclosed cabin for use as a passenger compartment, there being, behind the
driver’s seat, folding or removable seats with three-point safety belts, and, on the other
hand, of a load space which is separated from the cabin, is not higher than 50
centimetres, can be opened only at the rear and has no facilities for attaching a load,
which have a luxurious full-option interior (including electrically adjustable leather
seats, electrically operated mirrors and windows and a stereo with a CD player), and
which are equipped with an anti-lock braking system (ABS), an automatic, 4 to 8-litre,
very high-consumption petrol engine, four-wheel drive and luxurious (sports) rims, must
be classified, according to their general appearance and the entirety of their
characteristics, under heading 87.03 of the Combined Nomenclature as set out in Annex I
to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff as amended by the annexes to
Commission Regulation (EC) No 3115/94 of 20 December 1994, Commission Regulation
(EC) No 3009/95 of 22 December 1995 and Commission Regulation (EC) No 1734/96 of
9 September 1996.
_______________________________________________________________________
C-221/06 – 8 November 07
Reference for a preliminary ruling – Levy on the long-term depositing of waste at a waste
disposal site – Levy payable by the operator of the waste disposal site and calculated
according to the weight of the waste being deposited and the state of the waste disposal
site – Exemption from the levy in respect of the deposit of waste from contaminated sites
in Austria – No exemption for the deposit of waste from contaminated sites located in
other Member States – Article 90 EC – Internal taxation – Discrimination
By the first part of its question, the national court seeks to ascertain whether a national
levy such as the Altlastenbeitrag constitutes a charge having equivalent effect to a
customs duty on imports within the meaning of Articles 23 EC and 25 EC or internal
taxation which is discriminatory and, therefore, contrary to Article 90 EC.
It must first be borne in mind that EC Treaty provisions relating to charges having
equivalent effect and those relating to discriminatory internal taxation cannot be applied
together, so that under the system of the Treaty the same measure cannot belong to both
categories at the same time.
As regards Articles 23 EC and 25 EC, it is settled case-law that any pecuniary charge,
however small and whatever its designation and mode of application, which is imposed
unilaterally on goods by reason of the fact that they cross a frontier, and which is not a
customs duty in the strict sense, constitutes a charge having equivalent effect within the
meaning of Articles 23 EC and 25 EC.
In the light of that definition and as regards the characteristics of the Altlastenbeitrag, it
should be noted that all long-term depositing of waste is in principle subject to payment
of that levy, whether the waste comes from Austria or another Member State. A levy such
as the Altlastenbeitrag is not therefore charged because a border of the Member State
which imposed that levy has been crossed.
Whether such a levy is consistent with Community law cannot therefore be assessed in
the light of Articles 23 EC and 25 EC.
_______________________________________________________________________
C-173/06 – 18 October 07 –
Article 216 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the
Community Customs Code, as amended by Regulation (EC) No 2700/2000 of the
European Parliament and of the Council of 16 November 2000, applies to the inward
processing operations referred to in Article 115(1)(b) of that regulation in which the
compensating products have been exported outside the European Community prior to
importation of import goods.
Where, at the time of discharge of an inward processing operation (suspension system)
with equivalent compensation and prior exportation, the competent authorities have not
contested, on the basis of Article 216 of Regulation No 2913/92, as amended by
Regulation No 2700/2000, the exemption from import duties of the goods of non-member
country origin, they must waive subsequent entry in the accounts of those import duties,
pursuant to Art 220(2)(b) of that regulation, if three cumulative conditions are fulfilled.
First, it is necessary that those duties were not levied as a result of an error on the part of
the competent authorities themselves, secondly, that that error was such that it could not
reasonably have been detected by a person liable for payment acting in good faith and,
finally, that that person complied with all the provisions laid down by the legislation in
force as regards the customs declaration. It is for the national court to assess whether
that is the case in the circumstances in the main proceedings, on the basis of all the
concrete aspects of the case before it, and in particular the evidence adduced for that
purpose by the applicant in the main proceedings.
_______________________________________________________________________
C-464/06 – 18 October 07
_______________________________________________________________________
C-19/05 – 18 October 07
Member States are required to establish the Communities’ own resources as soon as
their own customs authorities have the necessary particulars and, therefore, are in a
position to calculate the amount of duties arising from a customs debt and determine the
debtor, regardless of whether the criteria for the application of Article 220(2)(b) of the
Customs Code are met and therefore whether or not it is possible to proceed with a
subsequent entry in the accounts or post-clearance recovery of the customs duties in
question. In those circumstances, a Member State which fails to establish the
Communities’ own resources and to make the corresponding amount available to the
Commission, without any of the conditions laid down in Article 17(2) of Regulation No
1552/89 being met, falls short of its obligations under Community law, in particular
Articles 2 and 8 of Decision 94/728.
In the present case, it is common ground that the Danish authorities failed to collect
import duties due in respect of the period between 1 January 1994 and 31 December
1997 inclusive because of their own error. That error led them not to make a subsequent
entry in the accounts and recovery of those duties in accordance with Article 220(2)(b) of
the Customs Code.
Since it was thus established subsequently that a condition laid down for the grant of
benefit under the end-use scheme was not fulfilled, Article 204(2) of the Customs Code
fixes the point at which the importing undertaking’s customs debt arose at the time when
the goods were placed under that scheme. After the withdrawal, from 31 December 1997,
of the licence granted to it during 1990 under that scheme, the importing undertaking
could not retroactively obtain a licence under the inward processing scheme.
Accordingly the question whether, in 1990, the undertaking could have met the conditions
required to obtain a licence under the latter scheme and, if so, whether the Community
would have had grounds to seek to have own resources made available in the absence of
any harm to its financial interests is irrelevant.
In that regard, it is necessary, in any event, to recall that a failure to comply with an
obligation imposed by a rule of Community law is itself sufficient to constitute a breach,
and the fact that such a failure had no adverse effects is irrelevant.
As to Article 10 EC, also relied on by the Commission, there are no grounds for holding
that there has been a failure to fulfil the general obligations contained in that article
which is separate from the established failure to fulfil the more specific Community
obligations by which the Kingdom of Denmark was bound under, inter alia, Articles 2
and 8 of Decision 94/728.It must accordingly be held that, by failing to make available to
the Commission an
amount of DKK 18 687 475 in own resources, together with default interest thereon
calculated as from 27 July 2000, the Kingdom of Denmark has failed to fulfil its
obligations under Community law and, in particular, under Articles 2 and 8 of Decision
94/728.
________________________________________________________________________
____________
C-208/06 and C-209/06 – 27 September 07
1. Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 2204/1999 of 12 October 1999, must be interpreted as meaning that
pieces of frozen boned meat from the forequarter part of the bovine animal come under
subheading 0202 30 50 of the Combined Nomenclature.
2. Annex I to Regulation No 2658/87, as amended by Regulation No 2204/1999, must be
interpreted as meaning that pieces of frozen boned meat from the forequarter of the
bovine animal do not have to satisfy any other conditions, and in particular, do not have
to come from the same animal, in order to be classified under subheading 0202 30 50. _
_______________________________________________________________________
C-443/05 P – 13 September 07
Appeal (T-134/03 and T-135/03) – Anti-dumping duties – Article 239 of the Customs
Code – Remission of import duties – First paragraph of Article 907 of Regulation (EEC)
No 2454/93 – Interpretation – Legality – Commission decision – Group of experts
meeting in the framework of the Customs Code Committee – Distinct entity in functional
terms – Articles 2 and 5(2) of Council Decision 1999/468/EC – Article 4 of the rules of
procedure of the Customs Code Committee – Conditions for the application of Article
239 of the Customs Code – No obvious negligence
In support of its appeal, the appellant pointed out four errors of law made by the Court of
First Instance consisting in:
- an incomplete presentation of the legal context resulting in a misinterpretation of
Regulation No 3319/941 as to the conditions required to impose a specific duty, and an
incorrect legal interpretation of the nature of the committee consulted;
- an incomplete presentation of the facts resulting in a clear distortion of those facts, and
a misapplication of Regulation No 3319/94 as to whether there is a situation of indirect
invoicing;
- an incorrect legal interpretation as regards the infringement of essential procedural
requirements and specifically as regards the legal nature of the committee consulted;
andan incorrect legal interpretation as regards the conditions for application of Article
239 of the Community Customs Code2 and specifically as regards the application of the
condition of no obvious negligence. The appeal was dismissed.
C-402/06 – 18 July 07 –
Heading 0406 of the Combined Nomenclature, set out in Annex I to Council Regulation
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Commission Regulation (EC) No 1734/96 of 9
September 1996, must be construed in such a way that it can accommodate the
classification of a product, such as that in issue in the main proceedings, obtained from
curdled milk from which a great deal of the serum has been extracted and the albumin
content of which has been reduced, by the effect of an enzyme, to 2% of the total quantity
of the albumins during a drying process lasting 24 to 36 hours and consisting of casein
and more than 50% humidity.
Subheading 0406 20 90 of the Combined Nomenclature must be construed in such a way
that it can accommodate a product, such as that in issue in the main proceedings, which
contains more than 50% humidity and less than 1% fat and is ground into regular
granules of 2 to 4 mm in size and is intended for use in the manufacture of pizza toppings
and in the preparation of cheese sauces.
_______________________________________________________________________
C-310/06 – 18 July 07 –
Combined cards designed to be inserted into portable computers must, after 1 January
1996, be classified as data-processing machines under heading No 8471 of the Combined
Nomenclature of the Common Customs Tariff, contained in Annex I to Council
Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature
and on the Common Customs Tariff, as amended by Commission Regulation (EC) No
3009/95 of 22 December 1995.
_______________________________________________________________________
C-173/05 – 21 June 07
By introducing an environmental tax on methane gas from Algeria, the Italian Republic
has failed to fulfil its obligations under Articles 23 EC, 25 EC and 133 EC and under
Article 9 of the Cooperation Agreement.
_______________________________________________________________________
C-56/06 – 14 June 07
Association between the European Communities and their Member States and the
Republic of Poland – Concept of ‘originating products’ – Used clothing
_______________________________________________________________________
C-229/06 – 19 April 07 –
_______________________________________________________________________
C-447/05 and C-448/05 – 8 March 07 –
Consideration of the questions raised has disclosed nothing capable of affecting the
validity of the provisions in column three, under heading 8528 of the Combined
Nomenclature, set out in Annex 11 to Commission Regulation (EEC) No 2454/93 of 2
July 1993 laying down provisions for the implementation of Council Regulation (EEC)
No 2913/92 establishing the Community Customs Code.
_______________________________________________________________________
C-183/06 – 15 February 07
An excise duty such as that introduced in Poland by the 2004 Law, which does not affect
passenger vehicles by reason of the fact that they cross the frontier, is not a customs duty
on import or a charge having equivalent effect within the meaning of Article 25 EC.
_______________________________________________________________________
C-400/05 – 11 January 07
Order of the Court – Recovery of import duties – Proof of the regularity of the operation
or of the place of the offence or irregularity – Consequence of the lack of notification to
the principal of the period for furnishing such proof
Trade marks – Directive 89/104/EEC – Right of the proprietor of a trade mark to prohibit
the transit of goods bearing an identical sign through the territory of a Member State in
which the mark enjoys protection – Unlawful manufacture – Associated State
1. Article 5(1) and (3) of First Council Directive 89/104/EEC of 21 December 1988 to
approximate the laws of the Member States relating to trade marks is to be interpreted as
meaning that the proprietor of a trade mark can prohibit the transit through a Member
State in which that mark is protected (the Federal Republic of Germany in the present
case) of goods bearing the trade mark and placed under the external transit procedure,
whose destination is another Member State where the mark is not so protected (Ireland in
the present case), only if those goods are subject to the act of a third party while they are
placed under the external transit procedure which necessarily entails their being put on
the market in that Member State of transit.
2. It is in that regard, in principle, irrelevant whether goods whose destination is a
Member State come from an associated State or a third country, or whether those goods
have been manufactured in the country of origin lawfully or in infringement of the
existing trade mark rights of the proprietor in that country. _______________________
C-250/05 – 26/10/06 –
Act of Accession to the European Union – Transitional measures – Annex XIII – Taxation –
Cigarettes imported from Slovenia – Import into Austria in travellers’ personal luggage –
Exemption from excise duty limited to certain quantities – Possibility of maintaining until 31
December 2007 the quantitative limits applied to imports from third countries – Directive
69/169/EEC
Articles 23 EC, 25 EC and 26 EC must be interpreted as meaning that they do not prohibit
national legislation such as that at issue in the main proceedings, under which the exemption
from excise duty for cigarettes imported in travellers’ personal luggage is limited to 25 units on
entry to the Republic of Austria from certain other Member States, in particular the Republic of
Slovenia, notwithstanding the fact that, following the last enlargement of the European Union,
that reduced exemption no longer applies to any third country with the sole exception of the
Swiss Samnauntal customs enclave, since imports of cigarettes from third countries generally
benefit from an exemption for 200 units.
_______________________________________________________________________
C-100/05 – 5/10/06 –
Action for annulment - Common Customs Tariff - Application for remission of import
duties - Measure adversely affecting a person – Inadmissibility
1. Consideration of the second question has disclosed nothing capable of affecting the
validity of Commission Regulation (EC) No 442/2000 of 25 February 2000 concerning
the classification of certain goods in the Combined Nomenclature in so far as the
products referred to in point 3 of the table set out in the Annex thereto are classified
under subheading 9503 90 32 of the Combined Nomenclature of the Common Customs
Tariff, set out in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the
tariff and statistical nomenclature and on the Common Customs Tariff, as amended by
Commission Regulation (EC) No 1832/2002 of 1 August 2002.
2. The classification decided upon by the Commission of the European Communities in
Regulation No 442/2000, as regards the product described in point 3 of the table set out
in the Annex thereto, is applicable by analogy to gas-filled balloons made of aluminised,
bonded plastic foil, the plastic foil forming the inside of the balloon. _______________
C-11/05 – 11/5/06 – Friesland Coberco Dairy Foods BV, trading as Friesland Supply
Point Ede v Inspecteur van de Belastingdienst/Douane Noord/kantoor Groningen
Charge on the landing of shrimp with fishing vessels registered in a Member State
intended to finance shrimp sieving and peeling equipment in the same Member State –
Article 25 EC – Charges having an effect equivalent to customs duties – Article 90 EC –
Internal taxation
Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and
statistical nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 2388/2000 of 13 October 2000, is to be interpreted as meaning that
a product, such as the polydimethilsiloxane, made up of sterile flakes, specially
developed and intended only to be implanted in the body for the treatment of a condition
and which is packaged at the time of its presentation to customs in l kg bags, is to be
regarded as an appliance to be implanted in the body which must be classified under
heading 9021 of the Combined Nomenclature. Since the purpose of such a product is not
to replace an organ but to enable a defective muscle to create connective tissues, it must
be classified under subheading 9021 90 90 of the Combined Nomenclature.
_______________________________________________________________________
C-500/04 – 16/2/06 – Proxxon GmbH v Oberfinanzdirektion Köln
The applicant claimed that the Court should annul the decision of the Commission dated
1 October 2004 (REM 15/02) on the application by the company NORTRAIL Transport
GmbH for repayment of import duties pursuant to Article 239 of the Customs Code
-Regulation (EEC) No 2913/92.
The applicant argued that there were special circumstances within the meaning of Article
239 of Regulation (EEC) No 2913/1992, as a result of which it was entitled to repayment
and remission of import duties.
The action was dismissed.
_______________________________________________________________________
C-491/04 – 23/2/06 – Dollond & Aitchison Ltd v Commissioners of Customs & Excise
Fused magnesia such as that at issue in the main proceedings comes under subheading
2519 90 10 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No
2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by Commission Regulations (EC) Nos 3115/94 of 20
December 1994, 1359/95 of 13 June 1995, 2448/95 of 10 October 1995 and 3009/95 of
22 December 1995.
_______________________________________________________________________
C-419/04 – 22/6/06 – Conseil général de la Vienne v Directeur général des douanes et
droits indirects
Article 871 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code, as amended by Commission Regulation (EC) No 1677/98
of 29 July 1998, must be interpreted as meaning that, in the context of a recovery
procedure or a procedure for remission of uncollected customs duties, the national
customs authorities are not required to submit the case to the Commission for a decision
where the doubts which they had had as regards the precise scope of the criteria laid
down in Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code with regard to a particular case have
dissipated, even after those authorities have expressed their intention to refer the matter
to the Commission, or where the doubts relate to the subsequent entry in the accounts of
customs duties which were not collected due to an omission on the part of an importer
acting in good faith to declare royalties which should have been incorporated in the
customs value of the imported goods.
_______________________________________________________________________
C-393/04 and C-41/05 – 15/6/06 – Air Liquide Industries Belgium SA v Ville de
Seraing (C-393/04) and Province de Liège (C-41/05)
State aid – Definition – Exemption from municipal and provincial taxes – Effects of
Article 88(3) EC – Charges having equivalent effect – Internal taxation
A tax on motive force, levied in particular on motors used for transporting industrial gas
through very high pressure pipes, does not constitute a charge having equivalent effect
within the meaning of Article 25 EC.
_______________________________________________________________________
T-382/04 – 30/11/06 – Heuschen & Schrouff Oriëntal Foods Trading BV v Commission
of the European Communities
Customs union - Rice paper from Vietnam - Remission of import duties - Equitable relief
- Article 239 of Regulation (EEC) No 2913/92 - Error of the customs authority
-Definition of manifest negligence - Principle of equal treatment - Principle of sound
administration - Principle of proportionality
Regulations (EEC) Nos 1538/91 and 3665/87 – Community Customs Code – Export
refunds – Conditions for granting – Sound and fair marketable quality – Customs
procedure – Export declaration – Physical check – Sample – Tolerated number of
defective units – Uniform quality – Rights and obligations of the exporter and of the
customs authority – Poultrymeat
Dumping – Imports of cotton-type bed linen from Egypt, India and Pakistan – Regulation
(EC) No 2398/97 – Regulation (EC) No 1644/2001 – Regulation (EC) No 160/2002 –
Regulation (EC) No 696/2002 – Recommendations and decisions of the WTO Dispute
Settlement Body – Legal consequences – Regulation (EC) No 1515/2001 – Retroactivity
– Reimbursement of duties paid
The Court declared the validity of Additional Note 1(f) to Chapter 10 of Annex I to
Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical
nomenclature and on the Common Customs Tariff, as amended by Commission
Regulation (EC) No 2388/2000 of 13 October 2000.
_______________________________________________________________________
C-306/04 – 16/11/06 – Compaq Computer International Corporation v Inspecteur der
Belastingdienst – Douanedistrict Arnhem
In order to determine the customs value of imports of computers equipped by the seller
with software for one or more operating systems made available by the buyer to the seller
free of charge, in accordance with Article 32(1)(b) or (c) of Council Regulation (EEC)
No 2913/92 of 12 October 1992 establishing the Community Customs Code, the value of
the software must be added to the transaction value of the computers if the value of the
software has not been included in the price actually paid or payable for those computers.
The same is true when the national authorities accept as the transaction value, in
accordance with Community law, the price of a sale other than that made by the
Community purchaser. In such cases, ‘buyer’ for the purposes of Article 32(1)(b) or (c)
of the Customs Code must be understood to mean the buyer who concluded that other
sale.
_______________________________________________________________________
C-304/04 and C-305/04 – 7/7/05 – Jacob Meijer BV (C-304/04) and Eagle International
Freight BV (C-305/04) v Inspecteur van de Belastingdienst - Douanedistrict Arnhem
Common Customs Tariff - Tariff classification of sound cards for computers - Validity of
Regulations (EC) Nos 2086/97 and 2261/98
All of the import duties laid down in Article 1(2)(a) of Regulation No 1430/79, namely,
customs duties on imports and charges having equivalent effect to such duties, as well as
agricultural levies and other import charges laid down within the framework of the
common agricultural policy or in that of specific arrangements applicable, pursuant to
Article 235 of the EC Treaty (now Article 308 EC), to certain goods resulting from the
processing of agricultural products, are levied by reason of the crossing of the external
frontiers of the Community.
A charge due under Article 3 of Regulation No 2670/81 is not levied by reason of the fact
that a quantity of C sugar has crossed the external frontiers of the Community but,
rather, because that quantity has not been exported outside the Community or because
the conditions and time-limits laid down by Regulation No 2670/81 were not complied
with when it was exported.
Therefore, such a charge does not correspond to any of the three categories listed in
Article 1(2)(a) of Regulation No 1430/79 and, consequently, does not come under import
duties within the meaning of Article 13 of the same regulation.
A charge due under Article 3 of Regulation No 2670/81 and the import duties referred to
in Article 1(2)(a) of Regulation No 1430/79 do not pursue the same objectives.
An amount due under Article 3 of Regulation No 2670/81 does not fall within the ambit of
Article 13 of Regulation No 1430/79.
Article 13 of Regulation No 1430/79 cannot serve as a basis for remission or repayment
of a charge due under Article 3 of Regulation No 2670/81.
_______________________________________________________________________
C-247/04 – 20/10/05 – Transport Maatschappij Traffic BV v Staatssecretaris van
Economische Zaken
1. Only the procedural rules set out in Articles 217 to 232 of Council Regulation (EEC)
No 2913/92 of 12 October 1992 establishing the Community Customs Code apply to the
recovery, commenced after 1 January 1994, of a customs debt incurred prior to that date.
2. Article 221(1) of Regulation No 2913/92 requires the amount of import or export duty
to be entered in the accounts before it is communicated to the debtor.
3. On expiry of the period prescribed by Article 221(3) of Regulation No 2913/92, an
action for recovery of a customs debt is time-barred subject to the exception laid down in
that article, which amounts to the debt itself being time-barred and, consequently,
extinguished. In the light of the rule thus established, Article 221(3) must be considered,
unlike Article 221(1) and (2), to be a substantive provision and cannot, therefore, be
applied to recovery of a customs debt incurred prior to 1 January 1994. Where the
customs debt was incurred prior to 1 January 1994, that debt can be governed only by
the rules on limitation in force at that date, even if the procedure for recovery of the debt
was commenced after 1 January 1994.
4. Member States are not required to adopt specific procedural rules on the manner in
which communication of the amount of import or export duties is to be made to the debtor
where national procedural rules of general application can be applied to that
communication, which ensure that the debtor receives adequate information and which
enable him, with full knowledge of the facts, to defend his rights. __________________
T-183/04 – 19/3/07 – Tokai Europe GmbH v Commission of the European Communities
The fourth indent of Article 203(3) of Regulation No 2913/92 establishing the Community
Customs Code which refers, among the categories of persons responsible for the customs
debt incurred through unlawful removal from customs supervision of goods liable to
import duties, to ‘the person required to fulfil the obligations arising from temporary
storage of the goods’ must be interpreted as meaning that those words designate the
person who holds the goods after they have been unloaded in order to move or store
them.
(see para. 41, operative part)
_______________________________________________________________________
C-136/04 – 24/11/05 – Deutsches Milch-Kontor GmbH v Hauptzollamt Hamburg-Jonas
Export refunds – Regulations (EEC) Nos 804/68, 1706/89 and 3445/89 – Cheeses
intended for processing in a third country
Cheese exported in 1990 which, by its nature, is intended for processing in a third
country may be covered by an export refund under Article 17(1) of Regulation No 804/68
on the common organisation of the market in milk and milk products, as amended by
Regulation No 3904/87, provided that it is classified, taking account of its type and
composition, under one of the product codes in the annex to Regulation No 1706/89
fixing the export refunds on milk and milk products, as defined by the agricultural
product nomenclature for export refunds annexed to Regulation No 3445/89 establishing
the full version, applicable from 1 January 1990, of the agricultural product
nomenclature for export refunds.
(see para. 33, operative part)
_______________________________________________________________________
C-23/04 to C-25/04 – 9/2/06 – Sfakianakis AEVE v Elliniko Dimosio
The condition for obtaining a differentiated export refund laid down in Article 17(3) of
Regulation No 3665/87 laying down common detailed rules for the application of the
system of export refunds on agricultural products, as amended by Regulation No
1384/95, as regards in particular the adjustments necessary for the implementation of the
Uruguay Round Agreement on Agriculture, namely clearance through customs for
release of the product concerned for consumption in the non-member country of
destination, is fulfilled where that product, on which import duties were paid in that
country, undergoes substantial processing or working there within the meaning of Article
24 of Regulation No 2913/92 establishing the Community Customs Code, even if the
product deriving from such processing or working is then re-exported to the Community,
with reimbursement of the duties levied in that country and payment of customs import
duties in the Community.
If the subsequent reimbursement of duties levied on an economic operator other than the
exporter retroactively removed the legal basis of the export refund, the exporter would be
placed in a position of uncertainty, arguably in breach of the principle of legal certainty,
and his right to a refund would depend on events or commercial conduct outside his
control.
That situation must, however, be distinguished from cases in which the exporter himself
has participated in an abusive practice, in which case reimbursement of the export refund
may nevertheless be required if the national court considers that evidence of an abusive
practice has been produced, in accordance with the rules of national law.
(see paras 36, 41, operative part)
_______________________________________________________________________
C-499/03 P – 3/3/05 – Peter Biegi Nahrungsmittel GmbH and Commonfood
Handelsgesellschaft für Agrar-Produkte mbH v Commission of the European
Communities
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)
_______________________________________________________________________
C-495/03 – 15/9/05 – Intermodal Transports BV v Staatssecretaris van Financiën
Common customs tariff – Import customs duties – Declared customs value including a
buying commission – Payment of customs duty on full amount declared – Revision of the
customs declaration – Conditions – Refund of customs duties paid on the buying
commission
A machine which, for video surveillance purposes, records signals from cameras and,
after compressing them, reproduces them on screen, performs a specific function other
than data processing within the meaning of Note 5(E) to Chapter 84 of the Combined
Nomenclature of the Common Customs Tariff in Annex I to Regulation No 2658/87 on the
tariff and statistical nomenclature and on the Common Customs Tariff, as amended by
Regulation No 2031/2001.
(see para. 31, operative part)
_______________________________________________________________________
C-405/03 – 18/10/05 – Class International BV v Colgate-Palmolive Company, Unilever
NV, SmithKline Beecham plc, Beecham Group plc
1. Article 5(1) and (3)(c) of First Directive 89/104 on trade marks and Article 9(1) and
(2)(c) of Regulation No 40/94 on the Community trade mark must be interpreted as
meaning that a trade mark proprietor cannot oppose the mere entry into the Community,
under the external transit procedure or the customs warehousing procedure, of original
goods bearing that mark which had not already been put on the market in the Community
previously by that proprietor or with his consent. The trade mark proprietor cannot make
the placing of the goods at issue under the external transit procedure or the customs
warehousing procedure conditional on the existence, at the time of the introduction of
those goods into the Community, of a final destination already specified in a third
country, possibly pursuant to a sale agreement.
‘Importing’ within the meaning of those provisions, which the trade mark proprietor may
oppose in so far as it entails ‘using [the mark] in the course of trade’ within the meaning
of Article 5(1) of the Directive and Article 9(1) of the Regulation, requires introduction of
those goods into the Community for the purposes of putting them on the market therein.
The putting on the market of goods coming from a third country is subject to their release
for free circulation, which is only one of the options open to the trader who brings goods
into the Community customs territory. As long as that option is not chosen and the
requirements of the customs-approved treatment or use, other than release for free
circulation, under which the goods have been placed are satisfied, the mere physical
introduction of those goods into the territory of the Community is not ‘importing’ within
the meaning of the provisions cited above. (see paras 34-35, 43-44, 50, operative part 1)
2. ‘Offering’ and ‘putting on the market’ the goods, within the meaning of Article 5(3)(b)
of First Directive 89/104 on trade marks and Article 9(2)(b) of Regulation No 40/94 on
the Community trade mark, may include, respectively, the offering and sale of original
goods bearing a trade mark and having the customs status of non-Community goods,
when the offering is done and/or the sale is effected while the goods are placed under the
external transit procedure or the customs warehousing procedure. The trade mark
proprietor may oppose the offering or the sale of such goods when it necessarily entails
the putting of those goods on the market in the Community. (see para. 61, operative part
2)
3. When a trade mark proprietor pleads interference with the exclusive rights conferred
on it by Article 5(1) of First Directive 89/104 on trade marks and Article 9(1) of
Regulation 40/94 on the Community trade mark, that interference involving either the
release for free circulation or the offering or sale of the goods which necessarily entails
putting on the market in the Community goods bearing the trade mark and having the
customs status of non-Community goods, it is for that proprietor to prove those facts
which give grounds for exercising the right of prohibition provided for in Article 5(3)(b)
and (c) of the directive and Article 9(2)(b) and (c) of the regulation.
(see paras 70, 75, operative part 3)
_______________________________________________________________________
C-400/03 – 8/7/04 – Waterman SAS, formerly Waterman SA v Directeur général des
douanes et droits indirects
The Explanatory Notes to the Combined Nomenclature are a valid aid to the
interpretation of the tariff provided that their content is in accordance with the actual
provisions of the common customs tariff and do not alter the meaning of its provisions.
Such is the case with the Explanatory Notes to subheadings 4202 12 11 and 4202 12 19.
They are contrary neither to the terms of the headings and subheadings at issue nor to
the applicable notes nor to the rule mentioned in paragraph 6 of the general rules for the
interpretation of the Combined Nomenclature, according to which the classification of
goods is to be determined according to the terms of subheadings. In particular, those
Explanatory Notes are an extension of Additional Note 1 to Chapter 42 of the Combined
Nomenclature, in that they specify that where the outer layer visible to the naked eye is
sheeting of plastic, the process by which that sheeting was obtained is irrelevant for the
purposes of tariff classification. In addition, in considering equivalent two technical
processes which result in an identical product, namely an outer surface of plastic, they
comply with the decisive criterion for the tariff classification of goods which lies in their
objective characteristics and qualities, as defined in the relevant heading of the Common
Customs Tariff and in the notes to the relevant sections or chapters. It follows that there
is no information such as to affect the validity of the Explanatory Notes in question.
(see paras 16, 19, 21, 27, 29, 32, operative part)
_______________________________________________________________________
C-378/03 – 5/10/06 – Commission of the European Communities v Kingdom of
Belgium
The Court declared that, because of the late payment of own resources in the case of
receipt of payments in instalments from a debtor, the Kingdom of Belgium has failed to
fulfil its obligations under Articles 10 and 11 of Council Regulation (EC, Euratom) No
1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of
the Communities' own resources, which, with effect from 31 May 2000, repealed and
replaced Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing
Decision 88/376/EEC, Euratom on the system of the Communities' own resources, which
was identical in subject-matter.
_______________________________________________________________________
C-377/03 – 5/10/06 – Commission of the European Communities v Kingdom of
Belgium
Action for compensation for damage allegedly caused by the implementation of the
procedures of the Customs Union instituted by the Agreement establishing an Association
between the European Economic Community and Turkey and its Additional Protocols
and Decision 1/95 of the EC-Turkey Association Council of 22 December 1995 on
implementing the final phase of the Customs Union.
The action was dismissed.
_______________________________________________________________________
C-342/03 – 10/3/05 – Kingdom of Spain v Council of the European Union
Common commercial policy - Canned tuna originating in Thailand and the Philippines
-Mediation within the WTO - Regulation (EC) No 975/2003 - Tariff quota
Articles 718(3)(d) and 670(p) of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code,
the latter of which defines the concept of ‘internal traffic’ for the purposes of temporary
importation with relief from import duties and the former of which lays down a condition
to which admission under the temporary importation procedure for road vehicles for
commercial use is subject, are to be interpreted as meaning that they prohibit the use of a
road tractor registered outside the customs territory of the Community to transport a
semi-trailer from a place within the customs territory of the Community, where the semi-
trailer is loaded with goods, to another place within the customs territory of the
Community where the semi-trailer is merely parked with a view to being transported
subsequently by another road tractor to the consignee of the goods, who is established
outside the customs territory of the Community.
The application of the temporary importation procedure directly depends on the carrying
out by the vehicle concerned of a clearly defined transport operation, namely carriage
which includes a crossing of the external border of the customs territory of the
Community by that vehicle and the goods or persons transported, and accordingly it is
the transport operation itself, carried out by the means of transport concerned, which is
decisive and not the final destination of the goods or persons transported.
(see paras 18, 20, 26, operative part)
_______________________________________________________________________
C-206/03 – 19/1/05 – Commissioners of Customs & Excise v SmithKline Beecham
Article 104(3) of the Rules of Procedure – Common customs tariff – Tariff headings –
Nicotine patches – Force in law of a classification opinion of the World Customs
Organisation
1. It is clear from the combined effect of Articles 4(13) and 37 of Regulation No 2913/92
establishing the Community Customs Code that goods arriving in the Community are
subject to customs supervision from the time of their introduction therein, whether it is
lawful or in breach of Articles 38 to 41 or the second indent of the first paragraph of
Article 177 of the Customs Code, which is what the supervising authorities must, by their
controls, establish. It follows that the submission of goods to such supervision is not
connected to the lawfulness of their introduction into that territory. (see para. 22)
2. Goods presented to customs, for which a summary declaration was lodged and an
external Community transit document validated, were not lawfully introduced into the
customs territory of the Community if, in the documents lodged with the customs
authorities, the goods were wrongly designated. In such cases, the customs debt is based
on Article 202 of Regulation No 2913/92 establishing the Community Customs Code,
which lays down the detailed rules on incurrence of the customs debt on the unlawful
introduction of goods. (see paras 32, 36, operative part 1, 2)
3. In order to determine who is the debtor of the customs debt in cases of lodging of a
summary declaration or customs declaration under an incorrect designation, the national
court must establish whether the person who lodged the summary declaration or the
customs declaration was, because he stated an incorrect designation, responsible for the
unlawful introduction of the goods. If such is not the case, it is for that court to consider
whether, by that action, the person participated in the introduction of the goods whilst he
was or should reasonably have been aware that it was unlawful. (see para. 41, operative
part 3) ________________________________________________________________
C-170/03 – 17/3/05 – Staatssecretaris van Financiën v Feron
1. Unless a plea of illegality is based on a matter of law or of fact which came to light in
the course of the procedure within the meaning of Article 48(2) of the Rules of Procedure
of the Court of First Instance, it is inadmissible at the stage of the reply, since an action
is defined by the application initiating proceedings. (see para. 51)
2. Although the Court must establish of its own motion any lack of competence by the
party adopting the contested measure, it is not required to consider of its own motion
whether the institution which adopted the provision constituting the legal basis for the
contested decision exceeded its authority. (see para. 52)
3. The group of experts which, pursuant to the first paragraph of Article 907 of
Regulation No 2454/93 laying down provisions for the implementation of Regulation No
2913/92 establishing the Community Customs Code, meets ‘within the framework of the
[Customs Code] Committee’, does not constitute a regulatory committee within the
meaning of Article 5 of Decision 1999/468 laying down the procedures for the exercise of
implementing powers conferred on the Commission.
It follows from the seventh recital in the preamble to and Article 5 of Decision 1999/468
that the regulatory procedure is to be used for ‘measures of general scope designed to
apply essential provisions of basic instruments’.
To consider that the regulatory committee – within the meaning of Article 5 of Decision
1999/468 – is empowered to give an opinion on a proposal for an individual decision as
to repayment or remission of customs duties would amount purely and simply to
conflating the notions of decision and measure of general scope, which are, however,
fundamentally distinct according to Article 249 EC and would, therefore, be in breach of
Article 249 EC and also of Article 7 EC and Decision 1999/468.
That conclusion is supported by the wording of the first paragraph of Article 907 of
Regulation No 2454/93. The phrase ‘within the framework of the Committee’ reflects the
fact that the group of experts referred to in Article 907 is clearly a distinct entity in
functional terms from the Customs Code Committee. If the legislature had intended the
Customs Code Committee to be consulted in the context of individual remission or
repayment procedures, it would have used the phrase ‘after consulting the committee’.
(see paras 55, 57-59)
4. The purpose of the Customs Code Committee’s rules of procedure is to ensure the
internal working of that committee while fully respecting the prerogatives of its members.
It follows that natural or legal persons may not rely on an alleged breach of those rules,
since it is not intended to ensure protection for individuals.
(see para. 79)
5. The purpose of Article 3 of Regulation No 1 is to ensure that documents which are
addressed by an institution to a Member State or to a person falling within the
jurisdiction of a Member State are drafted in the language of that State. Where
documents are addressed by the Commission to a group of experts consisting of Member
States’ representatives who are responsible for determining the merits of an application
by an individual, that individual cannot rely on an alleged breach of Article 3, since the
documents were not addressed to him. (see para. 86)
6. The principle of observance of the rights of the defence requires that any person who
may be adversely affected by a decision must be placed in a position in which he may
effectively make his views known, at least as regards the evidence on which the
Commission has based its decision.
Where decisions on the repayment or remission of import duties are taken by the
Commission pursuant to Article 239 of Regulation No 2913/92 establishing the
Community Customs Code, the procedure provided for in Article 906a of Regulation No
2454/93 laying down provisions for the implementation of Regulation No 2913/92
ensures that the rights of the defence of the applicant for remission are observed. As
regards the right of the applicant for remission to be given a hearing, neither the specific
provision concerning that procedure nor the general principle of observance of the rights
of the defence gives him the right to such a hearing.
Furthermore, the specific nature of the decision taken by the Commission pursuant to
Article 239 of the Customs Code does not make it at all necessary for the applicant for
remission to be given the opportunity to express his observations orally in addition to the
written submission of his point of view. (see paras 105-106, 108-109)
7. In order to assess whether there is obvious negligence within the meaning of Article
239 of Regulation No 2913/92 establishing the Community Customs Code, account must
be taken in particular of the complexity of the provisions non-compliance with which
resulted in the customs debt being incurred, as well as the professional experience of the
economic operator and the degree of care which he exercised.
In that respect, the Commission has a discretion when adopting a decision pursuant to
Article 239. The repayment or remission of import duties, which can be granted only
subject to certain conditions and in specific circumstances, is an exception to the general
system of import and export arrangements, and the provisions which govern such
repayment are therefore to be interpreted strictly. In particular, as the absence of
obvious negligence is an essential prerequisite for being able to claim repayment or
remission of import duties, it follows that that concept must be interpreted in such a way
that the number of cases of repayment or remission remains limited. As regards any
mistake that resulted in the customs debt being incurred, the operator cannot avoid its
own liability by relying on the mistake, genuine or otherwise, of its agents. In any event,
such a mistake cannot be borne by the Community budget. As regards the economic
operator’s professional experience, it must be examined whether the operator concerned
is one whose business activities consist mainly in import and export transactions and
whether he has already gained some experience in the conduct of such transactions.
As regards the care taken by the operator, where doubts exist as to the exact application
of the provisions non-compliance with which may result in a customs debt being
incurred, the onus is on the operator to make inquiries and seek all possible clarification
to ensure that he does not infringe those provisions. (see paras 135-137, 139-142)
8. The review procedure laid down under Article 11(8) of the basic antidumping
Regulation No 384/96 applies if there is a change in the circumstances on the basis of
which the values applied in the regulation imposing the anti-dumping duties were
established. The purpose of the review procedure is therefore to adapt the duties imposed
to take account of an evolution in the factors which gave rise to them, and the procedure
therefore presupposes that those factors have altered. (see para. 145)
9. It is clear from the wording of Article 905 of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code that the repayment of import duties is subject to the fulfilment of two
cumulative conditions, namely the existence of a special situation and the absence of
obvious negligence or deception on the part of the person concerned. Consequently,
repayment of duties must be refused if either of those conditions is not met. (see para.
148)
10. The statement of reasons required by Article 253 EC must disclose in a clear and
unequivocal fashion the reasoning followed by the institution which adopted the measure
in question in such a way as to enable the persons concerned to ascertain the reasons for
the measure and to enable the Community Court to exercise its power of review.
However, it is not necessary for the reasoning to go into all the relevant points of fact
and law. Whether the statement of reasons for a decision meets those requirements must
be assessed with regard not only to its wording but also to its context and to all the legal
rules governing the matter in question.
In the case of decisions to refuse the applications for remission pursuant to Article 239 of
Regulation No 2913/92 establishing the Community Customs Code, the Commission’s
duty to state reasons consists in explaining why the conditions laid down in that provision
have not been fulfilled.
(see paras 156-157)
_______________________________________________________________________
T-101/03 – 22/9/05 – Suproco NV v Commission of the European Communities
Association of the OCTs - Sugar not entitled to OCT origin - Request for a derogation
from the rules of origin - Rejection of the request for a derogation - Duty to give reasons
The statement of reasons required by Article 253 EC must be appropriate to the measure
at issue and must disclose in a clear and unequivocal fashion the reasoning followed by
the institution which adopted the measure in question in such a way as to enable the
persons concerned to ascertain the reasons for the measure and to enable the competent
Community Court to exercise its power of review. The requirements to be satisfied by the
statement of reasons depend on the circumstances of each case, in particular the content
of the measure in question, the nature of the reasons given and the interest which the
addressees of the measure, or other parties to whom it is of direct and individual
concern, may have in obtaining explanations. It is not necessary for the reasoning to go
into all the relevant facts and points of law, since the question whether the statement of
reasons meets the requirements of Article 253 EC must be assessed with regard not only
to its wording but also to its context and to all the legal rules governing the matter in
question.
A Commission Decision refusing to grant a derogation from Decision 2001/822, on the
association of the overseas countries and territories (OCTs), as regards the rules of
origin for sugar from the Netherlands Antilles, does not satisfy the requirements of
Article 253 EC where that decision does not make it possible to determine with sufficient
clarity: (i) the reasoning which led the Commission to conclude that the rules relating to
cumulation of origin could solve the problem and that using Guyanese sugar would not
cause the producer to cease its activities; (ii) whether Article 37(3)(b) of Annex III to the
OCT decision was applied by the Commission or not; and (iii) the method of calculation
used by the Commission in relation to the value added to Guyanese sugar in the context
of a possible application of Article 37(7) of that annex.
(see paras 20, 42-43, 45, 49)
_______________________________________________________________________
C-72/03 – 9/9/04 – Carbonati Apuani Srl v Comune di Carrara
Charges having effect equivalent to a customs duty - Tax levied on marble excavated in
the territory of a municipality on its being transported across the boundaries of the
municipal territory
A tax proportionate to the weight of goods, levied in one municipality of a Member State
only and imposed on one class of goods when those goods are transported beyond the
territorial boundaries of that municipality, constitutes a charge having effect equivalent
to a customs duty on exports within the meaning of Article 23 EC, despite the fact that it
is imposed also on goods the final destination of which is within the Member State
concerned.
First, the very principle of the customs union, as provided for by Article 23 EC, requires
the free movement of goods to be ensured within the union generally, not in trade
between Member States alone, but more broadly throughout the territory of the customs
union, and the absence of charges – whether between States or within a State – exhibiting
the features of a customs duty or of a charge having equivalent effect is a precondition
essential to the realisation of such a customs union. Second, given that the tax at issue is
imposed on all goods in the category in question that cross the territorial boundaries of
the municipality where they are produced, no distinction being made between goods the
final destination of which is in the Member State of production and goods destined for
other Member States, it impinges by its nature and terms on trade between Member
States.
(see paras 22, 24, 26, 35, operative part 1)
_______________________________________________________________________
T-26/03 – 27/9/05 – GeoLogistics BV v Commission of the European Communities
Customs Union - External Community transit operations - Meat destined for Morocco
-Fraud - Application for remission of import duties – Article 239 of Regulation (EEC) No
2913/92 - Article 905 of Regulation (EEC) No 2454/93 - Fairness clause - Special
situation - No deception or obvious negligence
1. Article 905 of Regulation No 2454/93 laying down provisions for the implementation
of Regulation No 2913/92 establishing the Community Customs Code, a provision which
explains and develops the rule relating to the repayment or remission of import or export
duties contained in Article 239 of the Customs Code, constitutes a general fairness
clause, intended, in particular, to cover exceptional situations which, in themselves, do
not fall within any of the cases provided for in Articles 900 to 904 of the implementing
regulation. It follows from the wording of that article that repayment of import duties is
subject to two cumulative conditions, namely, first, the existence of a special situation
and, second, the absence of deception or obvious negligence on the part of the operator
concerned.
Factors which might constitute a special situation exist, where, in view of the objective of
fairness underlying Article 239 of the Customs Code, factors liable to place the applicant
in an exceptional situation as compared with other operators engaged in the same
business are found to exist with the result that it would be inequitable to require the
trader to bear a loss which he normally would not have incurred. In order to determine
whether certain circumstances constitute a special situation, the Commission must assess
all the relevant facts. Although the Commission has some discretion in applying a
fairness clause, it is required to exercise that power by genuinely balancing, on the one
hand, the Community interest in ensuring that the customs provisions are respected and,
on the other, the interest of the bona fide importer in not suffering loss which goes beyond
normal commercial risk.
In that regard, although the exercise by the customs or police authorities of their
investigative powers is legitimate, the failure, on account of the demands of an
investigation, to inform the person liable that the investigation is being carried out and
that a fraud has been detected constitutes, in the absence of any deception or negligence
on the part of the person liable, a special situation. (see paras 34-35, 39-40, 54, 59-60)
2. In order to determine whether or not there is obvious negligence, within the meaning
of Article 239 of Regulation No 2913/92 establishing the Community Customs Code and
Article 905 of Regulation No 2454/93 laying down provisions for the implementation of
the Customs Code, account must be taken in particular of the complexity of the
provisions non-compliance with which has resulted in the customs debt being incurred,
and the relevant experience of, and care taken by, the trader. However, those three
factors are merely criteria, on the basis of which the Commission must ascertain whether
in a specific case there was obvious negligence on the part of the trader. The Commission
must, as part of its assessment, identify the specific acts or omissions of the person
applying for remission which, taken separately or as a whole, amount to obvious
negligence, and it must do so in the light of, inter alia, the criteria mentioned.
In that regard, although it is the responsibility of traders to guard against ordinary
commercial risks and although, consequently, the mere fact of having suffered financial
loss does not constitute a special situation within the meaning of the Community customs
legislation, it cannot be accepted that as a general rule the failure to take out insurance
amounts, on its own, to obviously negligent conduct on the part of the trader. What is
more, it is clear from Article 239 of Regulation No 2913/92 and Article 905 of Regulation
No 2454/93 that there must be a link between the trader’s alleged negligence and the
special situation. In the absence of such a link, it would be inequitable to refuse the
application for remission or repayment.
(see paras 75, 77, 83-84)
_______________________________________________________________________
T-23/03 – 6/2/07 – CAS SpA v Commission of the European Communities
Association Agreement between the EEC and the Republic of Turkey – Remission of
import duty – Fruit juice concentrate from Turkey – Community Customs Code –
Movement certificates – Special situation – Rights of the defence
For refunds requested before 1 April 1995, Article 78(3) of Regulation No 2913/92
establishing the Community Customs Code and Article 3(5)(a) of Regulation No 3665/87
laying down common detailed rules for the application of the system of export refunds on
agricultural products must be interpreted as meaning that entitlement to an export refund
exists at least at the rate applicable to the product actually exported where it is
established during a control by the customs authorities that the declared and exported
consignment did not consist entirely of the declared product but included another product
to which a lower rate of refund applied and the customs authorities adjusted the
declaration in accordance with Article 78(3) of the Community Customs Code. For the
purposes of the decision, it is not material whether the goods which were the subject of
the incorrect customs declaration are goods similar to those which were in fact declared.
For refunds requested after 1 April 1995, Article 11 of Regulation No 3665/87, as
amended by Regulation No 2945/94, is applicable in such circumstances.
(see para. 37, operative part 1)
_______________________________________________________________________
C-426/02 – 21/10/04 – Commission of the European Communities v Hellenic Republic
The Court declared that, by applying, for the benefit of the Ethnikos Organismos
Farmakon (National Organisation for Medicines), a charge in respect of the validation of
invoices on the import of raw materials for pharmaceutical use, semi-finished products
and finished products from other Member States or non-member countries, the Hellenic
Republic has failed to fulfil its obligations under Articles 23 EC, 25 EC and 133 EC.
_______________________________________________________________________
C-414/02 – 23/9/04 – Spedition Ulustrans, Uluslararasi Nakliyat ve. Tic. A.S. Istanbul v
Finanzlandesdirektion für Oberösterreich
Community Customs Code - Article 202 - Accrual of the customs debt - Unlawful
introduction into the Community customs territory - Meaning of "debtor" of such a debt
-Extension to the employer of liability for the debt of an employee who has committed
irregularities in the performance of customs obligations
The fact that a flatbed vehicle is equipped with an intricate, versatile and precise tipping
function does not exclude its classification as a dumper within the meaning of subheading
8704 10 of the Combined Nomenclature set out in Annex I to Regulation No 2658/87 on
the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions
resulting from Regulations Nos 3115/94 and 3009/95.
It is clear from the descriptions of such vehicles in the explanatory notes on the
Combined Nomenclature and the Harmonised System that an essential characteristic of
dumpers is to have a tipping hopper or an opening bottom for the transport of rubble and
various materials. There is, by contrast, no indication in those notes that the form or
functioning of the tipping hoppers can constitute, by themselves, decisive criteria for the
classification of a vehicle as a dumper.
(see paras 32, 37, operative part)
_______________________________________________________________________
C-392/02 – 15/11/05 – Commission of the European Communities v Kingdom of
Denmark
Member States are required to establish the Communities’ own resources as soon as
their own customs authorities have the necessary particulars and, therefore, are in a
position to calculate the amount of duties arising from a customs debt and determine the
debtor, regardless of the issue of whether the criteria for the application of Article
220(2)(b) of Regulation No 2913/92 establishing the Community Customs Code are met
and therefore whether or not it is possible to proceed with a subsequent entry in the
accounts or post-clearance recovery of the customs duties in question.
In those circumstances, a Member State which fails to establish the Communities’ own
resources and to make the corresponding amount available to the Commission, without
one of the conditions laid down in Article 17(2) of Regulation No 1552/89 implementing
Decision 88/376 on the system of the Communities’ own resources being met, namely that
for reasons of force majeure those amounts could not be collected or that recovery is
impossible in the long term for reasons which cannot be attributed to them, fails to fulfil
its obligations under Community law, in particular under Articles 2 and 8 of Decision
94/728 on the system of the European Communities’ own resources.
(see paras 66, 68, 70, operative part)
_______________________________________________________________________
C-379/02 – 7/10/04 – Skatteministeriet v Imexpo Trading A/S.
The Combined Nomenclature set out in Annex I to Regulation No 2658/87 on the tariff
and statistical nomenclature and on the Common Customs Tariff, as amended by
Regulations Nos 1734/96, 2086/97, 2261/98 and 2204/99, must be construed as meaning
that, in a dispute in which the parties disagree as to whether chairmats made of plastic of
various shapes, specially designed to be placed on the floor beneath office chairs on
wheels to facilitate their movement while also protecting the floor covering, come under
subheading 3918 10 90 or subheading 9403 70 90, classification under the former
subheading is to be preferred.
(see para. 26, operative part)
_______________________________________________________________________
C-361/02 and C-362/02 – 1/7/04 – Elliniko Dimosio v Nikolaos Tsapalos et
Konstantinos Diamantakis
Directive 76/308 on mutual assistance for the recovery of claims resulting from
operations forming part of the system of financing the European Agricultural Guidance
and Guarantee Fund, and of the agricultural levies and customs duties, is to be
interpreted as applying to customs claims which arose in one Member State under an
instrument issued by that State before that directive entered into force in the other
Member State, where the requested authority is situated.
Since the purpose of the directive is to eliminate obstacles to the functioning of the
common market arising from problems related to the crossborder recovery of the claims
referred to and to prevent fraudulent operations, it is conceivable that the directive may
apply to claims existing at the time it entered into force in the State where the requested
authority is situated.
(see paras 22-23, operative part)
_______________________________________________________________________
T-332/02 – 14/12/04 – Nordspedizionieri di Danielis Livio & C. Snc, Livio Danielis and
Domenico D'Alessandro v Commission of the European Communities (see Judgment in
Appeal C-62/05 P)
Customs union – Community transit operation – Fraud – Cigarette smuggling –
Remission of import duties – Regulation (EEC) No 1430/79 – Article 13: equitable
provision – Meaning of ‘special situation’
1. The sole aim of Article 13(1) of Regulation No 1430/79 on the repayment or remission
of import or export duties is to enable traders, when certain special conditions are
satisfied and in the absence of deception or obvious negligence, to be exempted from
payment of duties due from them and not to enable them to contest the actual principle of
a customs debt’s being due. The determination of the existence and precise amount of the
debt falls within the competence of the national authorities. Moreover, the decisions
adopted by the national customs authorities may be challenged before the national
courts, which may make a reference to the Court of Justice pursuant to Article 234 EC.
(see paras 33-34, 101)
2. Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or
export duties constitutes a general equitable provision designed to cover situations other
than those which arose most often in practice and for which special provision could be
made when the regulation was adopted. That provision is intended to be applied where
the circumstances characterising the relationship between an operator and the
administration are such that it would be inequitable to require the operator to bear a loss
which it normally would not have incurred.
That provision makes the remission of import duties subject to the fulfilment of two
cumulative conditions, namely the existence of a special situation and the absence of
deception or obvious negligence on the part of the economic operator. The Commission
has a margin of discretion in adopting a decision applying that general equitable
provision. Moreover, repayment or remission of import duties constitute an exception to
the usual body of rules governing import and export and, consequently, the provisions
providing for such repayment or remission are to be interpreted strictly. (see paras 40-42)
3. The failure by the national authorities to warn the economic operator liable for a
customs debt, for the demands of an investigation conducted by the customs authorities
or the police and aimed at identifying and apprehending the persons who have carried
out or are planning a fraud, or the accomplices of those persons, that such an
investigation is taking place constitutes, in the absence of any deception or negligence on
the part of the person liable, a special situation within the meaning of the equitable
provision in Article 13(1) of Regulation No 1430/79 on the repayment or remission of
import or export duties. Although it is true that, in the course of such an investigation, it
is legitimate for the national authorities deliberately to allow offences or irregularities to
be committed, to place on the person liable the burden of a customs debt arising from
those choices relating to the prosecution of offences is inimical to the objective of the
equitable provision, in that it puts the person liable in an exceptional situation by
comparison with other operators engaged in the same business.
Although it is also true that the presentation by the person liable, even in good faith, of
documents subsequently found to be falsified does not in itself constitute a special
situation justifying remission of import duties, the finding of such a situation must apply
if there are serious failures by the Commission or the national customs authorities,
facilitating the fraudulent use of the documents.
With respect to customs brokers operating at a Community border having delivered
Community transit certificates after a lorry left a location situated in a third country,
neither operating at a border, rather than at the place of departure of the consignment,
nor the impossibility of inspecting the lorry constitutes a factor liable to place an
operator in an exceptional situation as compared with other operators, since those
factors affect an indefinite number of operators. Accordingly, they cannot give rise to a
special situation within the meaning of the abovementioned provision.
(see paras 51, 70, 72, 84)
_______________________________________________________________________
C-293/02 – 8/11/05 – Jersey Produce Marketing Organisation Ltd v States of Jersey,
Jersey Potato Export Marketing Board, and Top Produce Ltd, Fairview Farm Ltd
Legislation on the export of potatoes from Jersey to the United Kingdom – 1972 Act of
Accession – Protocol No 3 on the Channel Islands and the Isle of Man – Regulation No
706/73 – Articles 23 EC, 25 EC and 29 EC – Charges having an effect equivalent to
customs duties – Measures having an effect equivalent to quantitative restrictions
1. Under Article 1(1) of Protocol No 3 on the Channel Islands and the Isle of Man
annexed to the Act concerning the Conditions of Accession of the Kingdom of Denmark,
Ireland and the United Kingdom of Great Britain and Northern Ireland and the
Adjustments to the Treaties, the Community rules on customs matters and quantitative
restrictions are to apply to the Channel Islands and the Isle of Man under the same
conditions as they apply to the United Kingdom, without distinction according to the
nature of the goods concerned. Since agricultural products listed in Annex II to the EEC
Treaty (now Annex I to the EC Treaty) are not subject to any particular treatment in that
regard, Articles 23 EC, 25 EC, 28 EC and 29 EC are applicable to potatoes grown on the
Island of Jersey and to products derived from them on that island. The application of those
provisions to agricultural products cannot be made subject to the adoption by the
Council, under Article 1(2) of Protocol No 3, of the measures judged necessary to ensure
the proper operation of the regime put in place as regards the Channel Islands and the
Isle of Man, or to the existence, within the Community, of a common organisation of the
markets in the sectors concerned. (see paras 35-36, 38-39, 41)
2. The Channel Islands, the Isle of Man and the United Kingdom must be treated as one
Member State for the purposes of the application of Articles 23 EC, 25 EC, 28 EC and 29
EC. (see para. 54)
3. The combined provisions of Articles 23 EC and 25 EC and Article 1 of Protocol No 3
on the Channel Islands and the Isle of Man annexed to the Act concerning the Conditions
of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland and the Adjustments to the Treaties are to be interpreted as
precluding Jersey legislation which confers on an exports framework body the power to
impose on Jersey potato producers a contribution, the amount of which is fixed by
reference to the quantities of potatoes produced by the parties concerned and exported to
the United Kingdom.
It is in that regard irrelevant that the legislation in question applies only to situations
forming part of that Member State’s internal trade. The customs union necessarily
implies that the free movement of goods should be ensured between Member States and,
in more general terms, within the customs union, and nothing rules out, in this case, the
possibility that potatoes dispatched to the United Kingdom might then be re-exported to
other Member States.
Community law also precludes a contribution levied under the same conditions, the
amount of which, however, is fixed by such a body by reference to the agricultural area
used by the parties concerned for growing potatoes, to the extent to which the income
therefrom serves to finance activities undertaken by that body contrary to Article 29 EC.
(see paras 61, 64-65, 67, 85, operative part 2-3)
4. The combined provisions of Articles 29 EC and 1 of Protocol No 3 on the Channel
Islands and the Isle of Man annexed to the Act concerning the Conditions of Accession of
the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and
Northern Ireland and the Adjustments to the Treaties are to be interpreted as precluding
Jersey legislation which:
– on the one hand, prohibits, with penalties imposed for non-compliance, Jersey
producers from offering for export or exporting their potatoes to the United Kingdom
market unless they are registered with an exports framework body and have entered into
a marketing agreement with it for the purpose of determining, in particular, the areas
which may be planted with crops for export as well as the identity of those authorised to
acquire those crops, and,
– on the other hand, prohibits, also with penalties imposed for non-compliance, all
marketing organisations from effecting such exports unless they are party to a
management agreement with that same framework body for the purpose of determining,
in particular, the identity of the sellers from whom it is permissible for them to obtain
their supplies.
It is in that regard irrelevant that such legislation concerns only exports to the United
Kingdom since nothing rules out that potatoes dispatched to the United Kingdom might
then be re-exported to other Member States.
(see paras 79, 85, operative part 1)
_______________________________________________________________________
T-240/02 – 17/12/04 – Koninklijke Coöperatie Cosun UA v Commission of the
European Communities (see Judgment in Appeal C-68/05 P)
Agriculture – Common organisation of the markets – Sugar – Charge due for C sugar
disposed of on the internal market – Customs duty – Application for remission – Equity
clause under Article 13 of Regulation (EEC) No 1430/79 – Concept of import and export
duties – Principles of equality and legal certainty – Equity
The presentation to customs of goods introduced into the Community, in terms of Article
4(19) of Regulation No 2913/92 establishing the Community Customs Code, concerns all
goods, including those hidden in a secret compartment specially made for that purpose.
The obligation to present goods as set out in Article 38 of the Code rests, as provided by
Article 40 of the Code, with the driver and co-driver of a lorry who introduced the goods,
even though the goods were hidden in the vehicle without their knowledge.
The person who has introduced goods into the customs territory of the Community
without mentioning them in the notification of presentation to customs is a customs
debtor within the meaning of the first indent of Article 202(3) of the Customs Code, even
if other persons can be declared debtors in respect of the same goods on the basis of the
other provisions of that article.
(see paras 24, 29-30, operative part)
_______________________________________________________________________
C-133/02 and C-134/02 – 22/1/04 - Timmermans Transport & Logistics BV v
Inspecteur der Belastingdienst - Douanedistrict Roosendaal and Hoogenboom Production
Ltd v Inspecteur der Belastingdienst - Douanedistrict Rotterdam.
Free movement of goods - Measures having equivalent effect - Procedures for detention
under customs control - Goods in transit intended for the market of a non-member
country - Spare parts for motor cars
1. Goods lawfully manufactured in one Member State in transit within another Member
State come within the scope of Articles 28 EC to 30 EC even if they are intended for a
non-member country. The Customs Union established by the Treaty necessarily implies
that the free movement of goods between Member States should be ensured. That freedom
could not itself be complete if it were possible for Member States to impede or interfere in
any way with the movement of goods in transit so that it is necessary, as a consequence of
the Customs Union and in the mutual interest of the Member States, to acknowledge the
existence of a general principle of freedom of transit of goods within the Community. (see
para. 18, 20)
2. Article 28 EC is to be interpreted as precluding the implementation, by the customs
authorities of a Member State, pursuant to a legislative measure of that Member State
concerning intellectual property and on the ground of suspected infringement of trade
mark, of procedures for detention of goods lawfully manufactured in another Member
State and intended, following their transit through the territory of the first Member State,
to be placed on the market in a non-member country. A measure of detention under
customs control which delays the movement of goods and may block their movement
completely, has the effect of restricting the free movement of goods and therefore
constitutes an obstacle to that freedom. Such a measure cannot be justified on the ground
of protection of industrial and commercial property within the meaning of Article 30 EC
since that transit does not involve any marketing of the goods in question and is therefore
not liable to infringe the specific subject-matter of the trade mark. (see paras 21, 24, 27,
29-30, operative part) ____________________________________________________
C-105/02 – 5/10/06 – Commission of the European Communities v Federal Republic of
Germany
Failure of a Member State to fulfil its obligations - Regulations (EEC) Nos 2913/92 and
2454/93 - External Community transit procedure - Customs authorities - Procedures for
collecting import duties - Time-limits - Non-compliance - Community own resources
-Making available - Time-limit - Non-compliance - Default interest - Member State
concerned - Default on payment
Article 104(3) of the Rules of Procedure - Agriculture - Export refunds - Conditions for
payment - Leaving the geographical territory of the Community – Definition
Article 9(1) of Regulation No 2730/79, which makes the payment of the export refund
subject to the condition that, as matters stand, the product must have left the
geographical territory of the Community, must be interpreted as meaning that the
expression geographical territory of the Community refers to a physical concept and that
the requirement that the product in respect of which export refunds have been applied for
must have left the geographical territory of the Community is not satisfied either by
placing the product under customs control or by bringing it within the customs
warehousing procedure. (see para. 46, operative part)
_______________________________________________________________________
C-60/02 – 7/1/04 – Criminal proceedings against X
Counterfeit and pirated goods - No criminal penalty for the transit of counterfeit goods
-Compatibility with Regulation (EC) No 3295/94
1. Article 11 of Regulation No 3295/94 laying down measures concerning the entry into
the Community and the export and re-export from the Community of goods infringing
certain intellectual property rights, as amended by Regulation No 241/1999, requires
Member States to introduce penalties for infringements of the prohibition laid down in
Article 2 of the regulation on the release for free circulation, export, re-export and
placing under a suspensive procedure of counterfeit goods. Those provisions are
applicable to situations in which goods in transit between two countries not belonging to
the European Community are temporarily detained in a Member State by the customs
authorities of that State. (see paras 55, 64, operative part 1)
2. The duty to interpret national law so as to be compatible with Community law, in the
light of its wording and purpose, in order to attain the aim pursued by the latter, cannot,
of itself and independently of a law adopted by a Member State, have the effect of
determining or aggravating the liability in criminal law of an entity which has failed to
meet the requirements of a Community regulation.
That obligation finds its limits in the general principles of law which form part of the
Community legal system and, in particular, in the principles of legal certainty and
non-retroactivity. In particular, the principle of non-retroactivity of penalties, enshrined
in Article 7 of the European Convention for the Protection of Human Rights and
constituting a general principle of Community law common to the constitutional
traditions of the Member States, prohibits the imposition of criminal penalties for conduct
which is not prohibited by a national rule, even if the national rule is contrary to
Community law.
(see paras 61, 63-64, operative part 2)
_______________________________________________________________________
C-56/02 – 22/5/03 – IHW Rebmann GmbH v Hauptzollamt Weiden (European Court
reports 2003 Page I-05499)
Free movement of goods - Trade with third countries - Procedure for returned goods
-Article 187 of Regulation (EEC) No 2913/92 - Reimportation of compensating products
originally re-exported subsequent to an inward processing procedure - Determination of
the import duty legally owed - Burden of proof in respect of the proportion of the value
of the reimported products corresponding to inward processing
The first paragraph of Article 187 of Regulation No 2913/92 establishing the Community
Customs Code allows the reimportation, with relief from import duties, of compensating
products originally exported or re-exported subsequent to an inward processing
procedure. The second paragraph of that provision, according to which [t]he amount of
import duty legally owed shall be determined on the basis of the rules applicable under
the inward processing procedure, must be interpreted as meaning that, where an
importer has provided proof that the imported goods are compensating products
qualifying for application of the procedure for returned goods under Article 848 of
Regulation No 2454/93 laying down provisions for the implementation of Regulation No
2913/92, but is unable to provide all the information necessary for calculating the duty
legally owed, the administrative cooperation procedure provided for in Articles 611(2)(b)
and 613 of Regulation No 2454/93 must be used by the customs authorities responsible
for accepting the declaration. Those authorities must therefore ask the supervising
customs office, using the INF 1 sheet, to communicate to them the amount of duty legally
owed. Article 15 of the Customs Code, relating to professional secrecy, does not preclude
use of that procedure. (see paras 35-36, operative part)
_______________________________________________________________________
T-53/02 – 13/9/05 – Ricosmos BV v Commission of the European Communities (see
Order in Appeal C-420/05 P)
1. Under the second paragraph of Article 907 of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code, in a procedure concerning the repayment or remission of import or
export duties, the Commission’s decision regarding the repayment or remission must be
adopted within nine months of the date of receipt by it of the file concerning the
application for remission and, where the Commission has had to request from the
Member State supplementary information in order to enable it to reach a determination,
the period of nine months is to be extended by a period equivalent to that between the
date on which that request was sent by the Commission and the date of the receipt by it of
the reply by the national authorities.
As the period allowed the Commission may thus be extended, the applicant for remission
cannot be sure that simply because the period of nine months has expired his application
has been accepted, notwithstanding the fact that he has not been informed that the period
has been extended. (see paras 54-55)
2. The customs rules do not provide that, in a procedure concerning the repayment or
remission of import or export duties, the person concerned must be informed without
delay that the Commission has requested further information from the national
authorities under the third subparagraph of Article 905(2) of Regulation No 2454/93
laying down provisions for the implementation of Regulation No 2913/92 establishing the
Community Customs Code or must be informed of the replies of those authorities or must
immediately be notified of the content of such exchanges.
Pursuant to Article 906a of the implementing regulation, it is only when the Commission,
after examining the application for remission, has reached a preliminary view
unfavourable thereto that it is to communicate its objections to the applicant in writing,
together with all the documents on which it bases those objections. Likewise, the first
subparagraph of Article 905(2) of the implementing regulation which provides that the
case sent to the Commission by the national authorities must, inter alia, include a
statement, signed by the applicant certifying that he has read the case and stating either
that he has nothing to add or listing all the additional information that he considers
should be included, is intended only to ensure that the operator who seeks a remission
and has not necessarily been involved in the preparation of the case by the competent
national authorities may exercise effectively his right to be heard during the first stage of
the administrative procedure, which takes place at national level. (see paras 61-63)
3. According to the principle of observance of the rights of the defence, it cannot be for
the Commission alone to decide, in a procedure concerning the repayment or remission
of import or export duties, which documents are useful to the person concerned for the
purposes of that procedure and to which he must be able to have access under Article
906(a) of Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code where the
Commission intends to take a decision unfavourable towards that party and communicate
its objections to him.
The Commission must therefore, at the time when it communicates its objections, give the
applicant an opportunity to examine all the documents likely to be relevant in support of
the request for remission or repayment; in order to do so it must at the very least provide
the applicant with a complete list of the non-confidential documents on file containing
sufficiently precise information for the applicant to assess, in full knowledge of the facts,
whether the documents described are likely to be useful to it. (see paras 72, 74)
4. Article 905 of Regulation No 2454/93 laying down provisions for the implementation
of Regulation No 2913/92 establishing the Community Customs Code, the provision
which sets out and expands on the rule concerning the repayment or remission of import
or export duties in Article 239 of the Customs Code, constitutes a general fairness clause
intended in particular to cover exceptional situations which, in themselves, do not fall
within any of the cases provided for in Articles 900 to 904 of the implementing
regulation. The repayment of import duties is subject to two cumulative conditions,
namely, first, the existence of a special situation and, secondly, the absence of deception
or obvious negligence on the part of the economic operator. Furthermore, there must be
a connection between the negligence of which the operator is accused and the special
situation established. However, it is not necessary for the special situation to be the
direct and immediate consequence of negligence on the part of the party concerned. In
that connection it is sufficient for the negligence to have contributed to or facilitated the
removal of goods from customs supervision.
When the Commission adopts a decision under that general rule as to fairness, it enjoys a
margin of discretion. Furthermore, since the repayment or remission of import duties,
which can be granted only in certain circumstances and in situations which are
specifically provided for, is an exception to the normal rules applicable to imports and
exports, the provisions under which such repayment or remission may be granted must be
interpreted strictly. (see paras 103, 150, 154)
5. In a procedure concerning the repayment or remission of import or export duties, the
Commission does not infringe the principle of proportionality by not taking into
consideration, in its examination of the application for remission, the extent of the
financial loss that a decision to reject it would entail for the economic operator
concerned. The amount of the customs debt imposed on an operator reflects the financial
significance of the goods which formed the subject-matter of the Community transit
operations at issue, in particular the amount of duties and taxes imposed on those goods.
The fact that the amount claimed by way of import duties is considerable comes within
the category of business risks to which the economic operator is exposed. Accordingly the
extent of the debt whose remission is sought is not in itself a factor capable of influencing
the assessment of the conditions to which such remission is subject.
(see para. 161)
6. The provisions of Article 239 of Regulation No 2913/92 establishing the Community
Customs Code and of Article 905 of Regulation No 2454/93 laying down provisions for
the implementation of Regulation No 2913/92 establishing the Community Customs Code
have the sole objective of making it possible, where certain specific conditions are
satisfied and in the absence of obvious negligence or deception, to exempt economic
operators from the payment of the duties for which they are liable; their objective is not
to enable the very principle of whether the customs debt has arisen to be called in
question. In fact, determination of the existence and of the exact amount of the debt is a
matter for the national authorities. However, the applications submitted to the
Commission under the abovementioned provisions do not concern the question whether
the provisions of substantive customs law have been correctly applied by the national
customs authorities. The decisions adopted by those authorities may be contested before
the national courts, those courts being able to bring a matter before the Court under
Article 234 EC.
(see para. 165)
_______________________________________________________________________
C-460/01 - 14/4/05 - Commission of the European Communities v Kingdom of the
ÜÏÏ^ÏInds
Failure of a Member State to fulfil its obligations - Regulations (EEC) Nos 2913/92 and
2454/93 - External Community transit procedure - Customs authorities - Procedures for
collecting import duties - Time-limits - Non-compliance - Community own resources
-Making available - Time-limit - Non-compliance - Default interest - Member State
concerned - Default on payment
1. Under the Community transit system, when the principal of an external Community
transit operation has not, within three months of being notified by the office of departure
that the consignment has not been presented on time at the office of destination, provided
proof of the regularity of the transit operation in question, a Member State which fails to
proceed with the entry in the accounts of the customs debt and other relevant duties and
communicate the amount thereof to the debtor within three days of the timeUlimit fixed in
Articles 218(3) and 221(1) of Regulation No 2913/92 establishing the Community
Customs Code fails to fulfil its obligations under the third sentence of Article 379(2) of
Regulation No 2454/93 laying down provisions for the implementation of Regulation No
2913/92.
It is clear from the very wording of that provision that the Member States are obliged to
instigate the recovery procedure upon expiry of the three-month time-limit referred to
therein. That interpretation is also necessary in order to guarantee diligent and uniform
application by the competent authorities of the provisions governing recovery of customs
debts, with a view to making Community own resources available efficiently and speedily.
(see paras 69, 94, operative part)
2. Under the Community transit system, late communication by a Member State of the
amount of the import duties to the debtor of the customs debt, in violation of Articles
218(3) and 221(1) of Regulation No 2913/92 establishing the Community Customs Code,
necessarily implies a delay in the establishment of the Community’s entitlement to the
own resources referred to in Article 2 of Regulation No 1552/89 implementing Decision
88/376 on the system of the Communities’ own resources and, under Article 11 of that
regulation, any delay in making the entry of own resources in the Commission’s account
gives rise to the payment of default interest by the Member State concerned at the interest
rate applicable to the entire period of delay. That interest is payable in respect of any
delay, regardless of the reason for the delay in making the entry in the Commission’s
account.
(see paras 85, 91, 94, operative part)
C-411/01 – 2/11/03 – GEFCO SA v Receveur principal des douanes
Articles 145 to 151 of Regulation No 2913/92 establishing the Community Customs Code
must be interpreted as meaning that an economic operator who has declared goods
under an incorrect tariff heading at the time of their temporary exportation from
Community territory under the outward processing procedure is not prohibited, even in
the absence of a formal amendment of the temporary export declaration, from adducing
proof that the incorrect declaration had no significant effect on the correct operation of
the procedure for the purposes of Article 150(2) of that regulation. Such proof must make
it possible to establish, without the slightest ambiguity, that the compensating products
have resulted from processing of the temporary export goods. It is for the national court
to determine, in the light of all the circumstances of the main proceedings, whether or not
the economic operator has adduced that proof. If so, the amount of the import duty which
would be applicable to the temporary export goods on the basis of their correct tariff
heading may be deducted when the compensating products are released for free
circulation. (see para. 55, operative part 1-4)
_______________________________________________________________________
C-387/01 – 29/4/04 – Harald Weigel and Ingrid Weigel v Finanzlandesdirektion für
Vorarlberg
Community Customs Code - Customs debt on import - Removal of goods from customs
supervision
Concerning the second of the cumulative conditions, laid down by Article 220(2)(b) of
Regulation No 2913/92 establishing the Community Customs Code, which have to be met
for the competent authorities to be able to waive subsequent accounting for import duties,
according to which condition the error by the competent customs authorities must be of
such a kind that it could not reasonably have been detected by a taxable person acting in
good faith, the question whether such an error was detectable must be determined having
regard to the nature of the error, the professional experience of the traders concerned
and the degree of care which they exercised. The nature of the error is to be determined
in the light of the complexity or otherwise of the rules concerned and the period of time
during which the authorities persisted in their error. As regards the professional
experience of the trader concerned, it needs to be determined whether he is a
professional economic trader, whose business essentially consists in import and export
operations and whether he already had some experience of trading in the goods in
question. As regards the degree of care shown by the trader concerned, the latter is
under a duty, as soon as he himself has doubts as to the need for an import licence in
order to benefit from a preferential tariff quota, to make enquiries and seek the greatest
clarification possible in order to ascertain whether or not those doubts are well founded.
On that point, such a trader must ascertain the Community law applicable to the
transactions which he undertakes by reading the relevant issues of the Official Journal.
As from the date of their publication in the Official Journal of the European
Communities, the applicable Community tariff provisions constitute the sole relevant
positive law on the matter and all persons are deemed to be aware of them; a customs
tariff manual drawn up by the national authorities, by contrast, is merely a guide for
customs operations, with purely indicative value. Where the conditions for applying
Article 220(2)(b) of that regulation are not met, the fact that action for post-clearance
recovery of customs duties is taken does not constitute an infringement of the
proportionality principle. (see paras 55, 61-62, 69, 73, 75, 87)
_______________________________________________________________________
C-290/01 – 4/3/04 – Receveur principal des douanes de Villepinte v Derudder & Cie
SA, and Tang Frères
Free movement of goods - Release for free circulation - Taking of a sample - Possibility
of challenging the representativeness of that sample
Directive 79/695 on the harmonisation of procedures for the release of goods for free
circulation and Directive 82/57 laying down certain provisions for implementing that
directive, as amended by Directive 83/371, together with Regulation No 2913/92
establishing the Community Customs Code, must be interpreted as meaning that it is
permissible for a customs declarant or his representative present when a sample was
taken by the customs authorities of imported goods and who did not at the time challenge
the representativeness of that sample to challenge its representativeness when requested
by those authorities to pay additional import duties following their analysis of that
sample, provided that the goods concerned have not been released or, if they have been
released, that they have not been altered in any way whatsoever, which is for that
declarant to prove.
(see para. 47, operative part)
_______________________________________________________________________
T-282/01 – 12/2/04 – Aslantrans AG v Commission of the European Communities
1. When the customs authorities of a Member State have submitted an application for
reimbursement of customs duties based on the existence of a special situation within the
meaning of Article 239 of Regulation No 2913/92 establishing the Community Customs
Code and it is found that the information supplied is not sufficient to enable a decision to
be taken by it on the case concerned in full knowledge of the facts, the Commission,
according to the third subparagraph of Article 905(2) of Regulation No 2454/93 laying
down provisions for the implementation of the Customs Code, is entitled to ask for
additional information to be supplied. In order to ascertain whether such a request
validly extended, pursuant to the second paragraph of Article 907 of the implementing
regulation, the period provided for the Commission to adopt a position on the application
for reimbursement, it is necessary to examine whether the information sought by that
request was likely to have an effect on that adoption of a position. In order to determine
whether the circumstances of the case constitute a special situation, the Commission is
required to assess all the relevant facts. (see paras 37-39)
2. Article 905 of Regulation No 2454/93 laying down provisions for the implementation
of Regulation No 2913/92 establishing the Community Customs Code, which explains
and expands the rule relating to the reimbursement or remission of import or export
duties contained in Article 239 of the Customs Code, constitutes a general fairness clause
intended, inter alia, to cover exceptional situations which, in themselves, do not fall
within any of the cases provided for in Articles 900 to 904 of the implementing
regulation. Since the repayment of import duties is subject to two cumulative conditions,
namely, first, the existence of a special situation and, secondly, the absence of deception
or obvious negligence on the part of the economic operator, repayment of duties must be
refused if either of those conditions is not met. The Commission enjoys a power of
assessment when it adopts a decision pursuant to that general equitable provision.
Moreover, since the repayment or remission of import duties, which may be granted only
subject to certain conditions and in cases which have been specifically provided for,
constitute an exception to the usual body of rules governing import and export, the
provisions providing for such repayment or remission are to be interpreted strictly.
Circumstances which constitute a special situation within the meaning of Article 905 of
the implementing regulation exist where, having regard to the objective of fairness
underlying Article 239 of the Customs Code, factors liable to place the applicant in an
exceptional situation as compared with other operators engaged in the same business are
found to exist. The theft of goods during transport must be regarded as one of the most
frequently reported incidents, against which traders are normally insured, in particular
those which specialise in the haulage of ‘high-risk’ goods, that is to say those which are
heavily taxed. (see paras 52-53, 55-56, 65) ____________________________________
C-266/01 – 15/5/03 – Préservatrice foncière TIARD SA v Staat der Nederlanden
(European Court reports 2003 Page I-04867)
Action for annulment - Common Customs Tariff - Tariff headings - Game console
-Classification in the Combined Nomenclature
1. Although it is true that the regulations for classifying specific goods in the Combined
Nomenclature, adopted by the Commission pursuant to the first indent of Article 9(1)(a)
of Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common
Customs Tariff, are of general application, since they concern all products of the type
described, regardless of their individual characteristics and origin, and they take effect,
in the interests of the uniform application of the Common Customs Tariff, in relation to
all customs authorities in the Community and all importers, such a measure of general
application may, however, in certain circumstances, be of direct and individual concern
to some economic operators and, therefore, may be challenged by them under the fourth
paragraph of Article 230 EC. This is so with respect to individual concern when an
undertaking which imports a given product has triggered the administrative procedure
which led to the adoption of the contested regulation and that procedure has concerned
specifically the tariff classification of that product, when that undertaking is the only
party whose legal position is affected as a result of adoption of the regulation, when the
contested regulation focuses specifically on the classification of the product imported by
the undertaking in question and there are no other products with identical features, it
being borne in mind that a possible application by analogy to similar products would not
preclude the undertaking from being individually concerned, when the undertaking is the
sole authorised importer of that product into the Community. (see paras 58-59, 63-64,
69, 71, 74-75)
2. The Council has conferred upon the Commission, acting in cooperation with the
customs experts of the Member States, a broad discretion to define the subject-matter of
tariff headings falling to be considered for the classification of particular goods.
However, the Commission's power to adopt the measures mentioned in Article 9(1)(a),
(b), (d) and (e) of Regulation No 2658/87 on the tariff and statistical nomenclature and
on the Common Customs Tariff does not authorise it to alter the subject-matter of the
tariff headings which have been defined on the basis of the Harmonised System
established by the 1983 International Convention on the Harmonised Commodity
Description and Coding System whose scope the Community has undertaken not to
modify under Article 3 thereof. (see para. 103)
3. The decisive criterion for the customs classification of goods must be sought generally
in their objective characteristics and qualities, as defined in the relevant heading of the
Common Customs Tariff and in the notes to the sections or chapters. (see para. 104)
4. It is true that the Harmonised System Explanatory Notes published by the Word
Customs Organisation constitute an important means of ensuring the uniform application
of the Common Customs Tariff by the customs authorities of the Member States and as
such may be considered a valid aid to the interpretation of the tariff. However, those
notes do not have legally binding force so that, where appropriate, it is necessary to
consider whether their content is in accordance with the actual provisions of the
Common Customs Tariff and whether they alter the meaning of such provisions. (see
para. 116)
5. It is possible to classify the game console described in the Annex to Regulation No
1400/2001 concerning the classification of certain goods in the Combined Nomenclature
under CN Code 9504 10 00: video games of a kind used with a television receiver. Thus,
in the absence of a definition of video games in the wording of subheading 9504 10 in the
section and chapter notes, in the Harmonised System Explanatory Notes (HSEN)
published by the World Customs Organisation, and in the Combined Nomenclature
explanatory notes drawn up by the Commission, it is appropriate to consider as video
games any products which are intended to be used, exclusively or mainly, for playing
video games, even though they might be used for other purposes, as is the console in
question here, which, both by the manner in which it is imported, sold and presented to
the public and by the way it is configured, is intended to be used mainly for playing video
games, even though it may also be used for other purposes, such as playing video DVDs
and audio CDs, in addition to automatic data processing. In addition, since neither the
wording of subheading 9504 10 nor the section and chapter notes pertaining thereto
contain any indications, much less limitations, as to the operation and/or the composition
of the products coming thereunder, the mere fact that the console may operate as an
automatic data-processing machine and that video games are only one type of file that it
can process does not by itself preclude its being classified under subheading 9504 10,
since it is quite clear that it is intended mainly to be used to run video games. This
finding is, moreover, not affected by HSEN(b) to heading 9504, which, in providing that
that heading does not cover products intended to be used mainly for playing video games,
would in effect modify and, more specifically, limit the scope of that heading and
subheading 9504 10; this cannot be accepted. Lastly, the classification of an automatic
data-processing machine according to the type of file processed does not place an undue
limitation on the scope of heading 8471 by introducing a new rule expanding the specific
function requirement of Note 5(E) to Chapter 84 to include all functions covered by any
other heading or subheading of the Combined Nomenclature. Although it is true that the
console in question does not perform any specific function other than data processing
and that the playing of video games is not one of its specific functions per se, the mere
fact that an apparatus fulfils the conditions of Note 5(A) to Chapter 84 and does not
perform any specific function other than data processing for the purposes of Note 5(E) to
that chapter does not by itself preclude such an apparatus from being classified under
another heading. (see paras 109, 111-112, 114-115, 117-119)
6. The obligation to state reasons which is incumbent on the Commission when it adopts
a customs classification regulation requires it to state clearly the legal basis for the
classification, in order to inform the persons concerned of the justification for the
measure adopted and to enable the Community Court to exercise its powers of review. A
simple reference to a general rule of interpretation of the Combined Nomenclature does
not fulfil that obligation. (see para. 131)
7. Regulation No 1400/2001 concerning the classification of certain goods in the
Combined Nomenclature is vitiated by an error of law in so far as it classifies the game
console described in the Annex to that regulation under CN Code 9504 10 00 and the
accompanying CD-ROM under CN Code 8524 39 90. Although it is true that such a
console can be classified under heading 9504, the Commission committed an error of law
by determining, on the basis of general rule 3(b) of interpretation of the Combined
Nomenclature, the classification of the console, having regard to the function which gives
it its essential character, because that rule covers only the classification of [m]ixtures,
composite goods consisting of different materials or made up of different components,
and goods put up in sets for retail sale, and provides for the classification of mixtures
and composite goods according to the material or component which gives them their
essential character. This interpretation of general rule 3(b) is confirmed by the HSEN to
that rule, and by the principle that it is necessary, in carrying out the tariff classification
of a product, to identify, from among the materials of which it is composed, the one which
gives it its essential character, which may be done by determining whether the product
would retain its characteristic properties if one or other of its constituents were removed
from it. Since a possible error in the classification of the console automatically entails
the invalidity of the classification of the accompanying CD-ROM, there is also an error
in that regard. Accordingly, the regulation in question must be annulled. (see paras 119,
123-126, 128, 133-134, operative part 1)
_______________________________________________________________________
C-222/01 – 29/4/04 – British American Tobacco Manufacturing BV v Hauptzollamt
Krefeld
1. Questions referred for a preliminary ruling are not inadmissible where referred in a
context in which the Community rules to be interpreted apply only by virtue of a
reference made by domestic law, since, where, in relation to purely internal situations,
domestic legislation adopts solutions which are consistent with those adopted in
Community law in order, in particular, to ensure a single procedure in comparable
situations, it is clearly in the Community interest that, in order to forestall future
differences of interpretation, provisions or concepts taken from Community law should be
interpreted uniformly, irrespective of the circumstances in which they are to apply. (see
para. 40)
2. In so far as the temporary removal of the T 1 transit document from the goods to which
it relates prevents the presentation of that document at any possible requisition by the
customs service, such a removal constitutes a removal of those goods from customs
supervision within the meaning of Article 2(1)(c) of Regulation No 2144/87, which
provides that a customs debt is incurred in such a case, even if the customs authorities
have not demanded presentation of the document or established that it could not have
been presented to them without considerable delay. (see para. 56, operative part 1)
3. The fact that infringements of the Community transit system originate in the conduct of
an undercover agent belonging to the customs services constitutes a special situation
within the meaning of Article 13(1) of Regulation No 1430/79, which may, in appropriate
cases, justify the remission or repayment of duties paid by the principal, provided no
deception or obvious negligence may be attributed to him.
Deception or obvious negligence on the part of persons whom the principal has engaged
to carry out obligations contracted under that system does not, in itself, exclude
repayment to the principal of duties incurred as a result of the removal of goods placed
under that system from customs supervision, provided no deception or obvious
negligence is attributable to the principal.
(see paras 66, 73, operative part 2-3)
_______________________________________________________________________
C-203/01 – 08/07/2002 – Fazenda Pública v Antero
The expression "entry in the accounts" used in Article 1(2)(c) and in the second
subparagraph of Article 2(1) 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 refers to the administrative act determining
the amount of the import or export duties to be collected by the competent authorities and
not to the entry by the customs authorities in accounts books, or on equivalent computer
media, of such amount. Such entry is not a condition prior essential to the taking of
action for post-clearance recovery.
_______________________________________________________________________
C-152/01 – 20/11/03 – Kyocera Electronics Europe GmbH v Hauptzollamt Krefeld
Regulations (EEC) Nos 2913/92 and 2454/93 - External Community transit - Offence or
irregularity - Recovery of a customs debt – Conditions
Article 379(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down
provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing
the Community Customs Code, read in conjunction with Council Regulation (EEC) No
2913/92 of 12 October 1992 establishing the Community Customs Code, should be
interpreted as meaning that a customs debt arising by reason of an offence or irregularity
committed in connection with a consignment placed under the external Community
transit procedure can be recovered from the principal by the office of departure even if it
did not notify the principal before the end of the 11th month following the date of
registration of the Community transit declaration that the consignment had not been
presented at the office of destination and that the place of the offence or irregularity
could not be established. The same applies if the office of departure did not follow an
administrative procedure for the transmission of information, such as the early warning
system, or if the failure to comply with the time-limit was due to error or negligence on
the part of that office.
_______________________________________________________________________
C-78/01 – 23/9/03 – Bundesverband Güterkraftverkehr und Logistik eV (BGL) v
Bundesrepublik Deutschland (European Court reports 2003 Page I-09543)
Free movement of goods - External transit operation - Transport under cover of a TIR
carnet - Offences or irregularities - Possibility for a guaranteeing association to prove the
place where the offence or irregularity was committed - Time-limit for furnishing proof
-Existence of an obligation for the Member State which detects an offence or irregularity
to investigate the place where it was committed
The scope of Article 30 of the Treaty (now, after amendment, Article 28 EC) does not
include provisions of the Treaty relating to charges having effect equivalent to customs
duties (Article 12 of the Treaty (now, after amendment, Article 25 EC)) and Article 16 of
the Treaty (repealed by the Treaty of Amsterdam) or relating to discriminatory internal
taxation (Article 95 of the Treaty (now, after amendment, Article 90 EC)). It follows that
if charges, such as those collected in a port on all loading and unloading of goods, fall
within the scope of Article 12 or Article 95 of the Treaty, it is one or other of those
provisions that will apply and not Article 30 of the Treaty. If those charges should prove
not to constitute an impediment prohibited by Article 12 or 95, the result would not be
that they automatically fell within the ambit of Article 30. (see paras 56, 58)
_______________________________________________________________________
C-30/01 – 23/9/03 – Commission of the European Communities v United Kingdom
(European Court reports 2003 Page I-09481)
Failure of a Member State to fulfil its obligations – Gibraltar – Customs territory of the
Community
The exclusion of Gibraltar from the customs territory of the Community by virtue of the
Act of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland implies that neither the Treaty rules on free movement of
goods nor the rules of secondary Community legislation intended, as regards free
circulation of goods, to ensure approximation of the laws, regulations and administrative
provisions of the Member States pursuant to Articles 94 EC and 95 EC are applicable to
it. That interpretation is not called into question by the rules applicable to Ceuta and
Melilla, which contain an express provision that goods originating in those territories
are exempt from customs duties following their release into free circulation in the
customs territory of the Community. Rather, those rules confirm the soundness of that
interpretation, to the effect that exclusion from the customs territory of the Community
entails the inapplicability of the Treaty provisions and secondary legislation on trade in
goods, unless otherwise expressly provided. Of course, failure to apply the directives
adopted under Articles 94 EC or 95 EC to Gibraltar may endanger the consistency of
other Community policies, such as environmental protection, where the objectives of
those policies are pursued as an ancillary aim by those directives. However, that fact
cannot lead to the extension of the territorial scope of those directives beyond the limits
imposed by the Treaty and by the Act of Accession of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland. (see paras 59-60, 63)
_______________________________________________________________________
C-422/00 – 16/1/03 – Capespan International plc v Commissioners of Customs & Excise
(European Court reports 2003 Page I-00597)
1. The customs value of fruit and vegetables coming within the scope of Regulation No
3223/94 on detailed rules for the application of the import arrangements for fruit and
vegetables must, in respect of the period between 18 March 1997 and 17 July 1998 (day
prior to entry into force of amendments to the regulation) inclusive, be determined in
accordance with the rules for calculating entry price provided for in Article 5 of that
regulation, and not in accordance with the general rules provided for in the Community
Customs Code and its implementing regulation. In fact that regulation, which the
Commission was authorised to enact, seeks to amend the rules for determining the
customs value of fruit and vegetables; provisions contained in agricultural legislation
may legitimately establish special rules by reference to those contained in the Community
Customs Code. (see paras 69, 78-79, 82, operative part 1)
2. Regulation No 1498/98 amending Regulation No 3223/94 on detailed rules for the
application of the import arrangements for fruit and vegetables, and adding paragraph
1b to Article 5 of Regulation No 3223/94, under which the customs value of fruit and
vegetables coming within the scope thereof must be determined on the same basis as that
of the entry price of products into the Community is not invalid either on the ground that
the Commission exceeded its powers, or for breach of the Community's international
obligations, or for infringement of essential formal requirements in regard to the detailed
arrangements for adoption of measures implementing the Community Customs Code.
(see paras 92-104, operative part 2)
3. Article 5 of Regulation No 3223/94 on detailed rules for the application of import
arrangements for fruit and vegetables, which offers importers of fruit and vegetables
coming within the scope of that regulation the choice between three methods for
determining the entry price of their consignments, must be interpreted as meaning that an
importer who is not in a position to make a definitive declaration of customs value at the
time of customs clearance may give a provisional indication of that value under Article
254 of Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code only where the value
of the abovementioned products is determined according to the method provided for in
Article 5(1)(b) of Regulation No 3223/94, that is to say where the value of the products
may be determined on the basis of the unit price relating to sales of identical or similar
imported products. The question whether an importer may give a provisional indication
of customs value does not arise in the case of the other methods for determining the entry
price of the products set out in subparagraphs (a) and (c) of the provision at issue. (see
paras 107, 110, 112, operative part 3) _______________________________________
C-389/00 – 27/2/03 – Commission of the European Communities v Federal Republic of
Germany (European Court reports 2003 Page I-02001)
Customs Code - Customs value of imported goods - Price of goods and buying
commission - Reimbursement of duty payable on full amount
Customs duties - Imports of beef from South America - Article 13(1) of Regulation
(EEC) No 1430/79 - Application for remission of import duties - Rights of the defence
-Special situation
Annuls the Commission's decision of 25 July 2000 finding that the remission of import
duties is not justified in a particular case (REM 49/99).
_______________________________________________________________________
C-282/00 – 15/5/03 – Refinarias de Açúcar Reunidas SA (RAR) v Sociedade de
Indústrias Agricolas Açoreanas SA (European Court reports 2003 Page I-04741)
Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and on the
Common Customs Tariff, as amended by Regulation No 1734/96, must be interpreted as
meaning that an ink-cartridge without integrated print head, consisting of plastic casing,
foam, a metal screen, seals, tape seal, labels, ink and packing material, is to be classified,
pursuant to general rule 3(b) for the interpretation of the Combined Nomenclature, under
sub-heading No 3215 90 80 of the Combined Nomenclature. The element which gives the
cartridge its essential character is the ink which it contains.
The fact, moreover, that the product in question can only be used, as regards both the
cartridge and the ink, in a particular type of printer does not mean that it can be
described as a part or accessory of a printer within the meaning of heading 8473 of the
Combined Nomenclature, in so far as the cartridge plays no particular role in the actual
mechanical functioning of the printer and merely enables it to fulfil its usual function.
(see paras 27, 31-32, 35, operative part)
_______________________________________________________________________
C-260/00 to C-263/00 – 7/11/02 – Lohmann GmbH & Co. KG (C-260/00 à C-262/00)
and Medi Bayreuth Weihermüller & Voigtmann GmbH & Co. KG (C-263/00) v
Oberfinanzdirektion Koblenz (European Court reports 2002 Page I-10045)
1. 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:
- in order to determine whether there is an `error made by the competent authorities
themselves', account must be taken both of the conduct of the customs authorities which
issued the certificate permitting the application of preferential treatment and of that of
the central customs authorities;
- the routine issuing by the authorities of the exporting country of certificates permitting
the application of preferential treatment under association rules constitutes evidence of
such an error when those authorities must have been aware, on the one hand, of the
existence in the exporting country of a policy of encouraging exports, involving the
duty-free importation of components originating in third countries for incorporation in
goods intended for export to the Community and, on the other hand, of the absence in the
exporting country of provisions enabling collection of the compensatory levy to which the
application of preferential treatment to exports to the Community of goods thus obtained
was subject;
- the fact that some of the relevant provisions of the association rules were not published
in the Official Journal of the European Communities and the circumstance that those
provisions were not implemented, or were implemented incorrectly, in the exporting
country over a period of more than 20 years constitute evidence that such an error could
not reasonably have been detected by the person liable.
2. The conduct of the authorities of the exporting country does not affect the
determination of the person by whom the customs debt is payable or the right of the
authorities of the importing country to take action for post-clearance recovery thereof.
3. Articles 22 and 25 of the Agreement establishing an association between the European
Economic Community and Turkey do not require the national customs authorities of a
Member State, acting on the Commission's advice, to have recourse to the procedure
provided for by those articles before taking action for post-clearance recovery of import
duties.
T-239/00 – 4/7/02 – SCI UK Ltd v Commission of the European Communities
(European Court reports 2002 Page II-02957)
Regulation (EEC) No 4142/87 - Conditions under which certain goods are eligible on
import for a favourable tariff arrangement by reason of their end-use - Regulations (EEC)
Nos 1517/91, 1431/92 and 1421/93 - Suspension of autonomous Common Customs
Tariff duties – Dates
Regulation No 4142/87, determining the conditions under which certain goods are
eligible on import for a favourable tariff arrangement by reason of their end-use, and
Regulations Nos 1517/91, 1431/92 and 1421/93, temporarily suspending the autonomous
Common Customs Tariff duties on a number of agricultural products, do not preclude
dates imported in original packings of a net content not exceeding 11 kg from being
eligible for suspension of the autonomous Common Customs Tariff duties provided for in
the latter three regulations and applying to dates, fresh or dried, for packing for retail
sale into immediate packings of a net content not exceeding 11 kg. In order to achieve the
purpose of the tariff suspension, namely to protect the interests of user industries and
processing industries, it is sufficient that dates have actually been packed or repacked
before sale, irrespective of the weight of the content of the packings in which they are
imported into the Community.
(see paras 34, 37-38, 40 and operative part)
_______________________________________________________________________
C-156/00 – 13/3/03 – Kingdom of the Netherlands v Commission of the European
Communities. European Court reports 2003 Page I-02527.
Action for annulment of Commission Decision C (2000) 485 final - Remission of import
duties - Inward processing - Lack of equivalence between Community products and
imported products
1. The mere fact that a possible remission of customs duties following a decision by the
Commission on the basis of Articles 905 and 907 of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code has consequences for the compensatory interest applied on those duties by
the competent customs authorities does not in any way imply that the Commission is
empowered to proceed with the remission of that interest. The Commission is competent
only to take a decision on the remission of import duties and may not rule on
compensatory interest. (see paras 48-49)
2. Under Article 221(3) of Regulation No 2913/92 establishing the Community Customs
Code, communication to the debtor of the amount of duty owed is not to take place after
the expiry of a period of three years from the date on which the customs debt was
incurred, except where it is as a result of an act that could give rise to criminal court
proceedings that the customs authorities were unable to determine the exact amount
legally due. It is for the Member States and their competent authorities to implement that
rule; the Commission is not empowered to rule on the question whether the recovery
procedure for the customs debt was carried out in accordance with that rule. Thus, when
it takes a decision on an application for remission of customs duties referred by a
Member State following an application submitted by the debtor to the competent customs
authorities, the Commission is obliged to examine the application in question as it is and
may not question the time periods within which the debt recovery procedure was
instituted by the customs authorities. (see paras 62, 64-65)
3. In order to determine whether or not the debtor has demonstrated obvious negligence
within the meaning of the second indent of Article 239(1) of Regulation No 2913/92
establishing the Community Customs Code, it is appropriate to apply by analogy the
criteria used in the context of Article 220 of the Customs Code to ascertain whether or
not an error committed by the customs authorities was detectable by a trader, that is,
according to the complexity of the applicable rules, and the trader's experience and
diligence. (see paras 92-93, 96, 98) _________________________________________
C-101/00 – 19/9/02 – Tulliasiamies and Antti Siilin (European Court reports 2002 Page
I-07487)
Taxation of imported used cars -First paragraph of Article 95 of the EC Treaty (now,
after amendment, first paragraph of Article 90 EC) - Sixth VAT Directive -Determination
of taxable value - Reference to the Community Customs Code
1. The first paragraph of Article 95 of the Treaty (now, after amendment, the first
paragraph of Article 90 EC) allows a Member State to apply to used vehicles imported
from another Member State a system of taxation under which the taxable value is
determined by reference to the customs value as defined by Regulation No 2913/92
establishing the Community Customs Code and Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92, but precludes the taxable
value from varying according to the marketing stage where this may result, at least in
certain cases, in the amount of the tax on an imported used car exceeding the amount of
the residual tax incorporated in the value of a similar used car already registered in the
national territory. (see para. 61, operative part 1)
2. The first paragraph of Article 95 of the Treaty (now, after amendment, the first
paragraph of Article 90 EC) precludes a Member State from applying to used cars
imported from another Member State a system of taxation under which the tax on those
vehicles
- is equal, during the first six months from the registration or bringing into use of the
vehicle, to the tax charged on a similar new vehicle, and
- is equal, from the 7th to the 150th month of use of the vehicle, to the tax on a similar
new vehicle, with a linear reduction by a percentage of 0.5% per full calendar month,
since such a system of taxation does not take the actual depreciation of the vehicle into
account and does not provide a guarantee that the amount of tax it determines will in no
case exceed the residual tax incorporated in the value of a similar used car already
registered in the national territory. (see para. 80, operative part 2)
3. Where a Member State applies to used cars imported from other Member States a
system of taxation under which the actual depreciation of the vehicles is defined in a
general and abstract way on the basis of criteria laid down by national law, the first
paragraph of Article 95 of the Treaty (now, after amendment, the first paragraph of
Article 90 EC) requires that system of taxation to be arranged in such a way, making
allowance for the reasonable approximations inherent in any system of that type, as to
exclude any discriminatory effect. That requirement presupposes, first, that the criteria
on which the flat-rate method of calculating the depreciation of vehicles is based are
made public and, second, that the owner of a used vehicle imported from another
Member State is able to challenge the application of a flat-rate method of calculation to
that vehicle, which may mean that its particular characteristics have to be examined in
order to ensure that the tax applied to it does not exceed the residual tax incorporated in
the value of a similar used vehicle already registered in the national territory. (see para.
89, operative part 3)
4. A tax such as that under Paragraph 5 of the Finnish law on car tax, described in
national law as value added tax on car tax, does not constitute value added tax within the
meaning of the Sixth Directive 77/388 on the harmonisation of the laws of the Member
States relating to turnover taxes, in the version of Directive 92/111 amending Directive
77/388 and introducing simplification measures with regard to value added tax, and is
compatible with Article 33 of that directive. (see para. 107, operative part 4)
5. The first paragraph of Article 95 of the Treaty (now, after amendment, the first
paragraph of Article 90 EC) precludes the levying of a tax such as that under Paragraph
5 of the Finnish law on car tax, which is payable on car tax, in so far as the amount
charged as such a tax on a used car imported from another Member State exceeds the
amount of the residual tax incorporated in the value of a similar used car already
registered in the national territory. (see para. 117, operative part 5)
_______________________________________________________________________
C-99/00 – 4/6/02 – Criminal proceedings against Kenny Roland Lyckeskog (European
Court reports 2002 Page I-04839)
Questions for a preliminary ruling - Obligation to refer - Court or tribunal against whose
decisions there is no judicial remedy under national law - Interpretation of Regulation
(EEC) No 918/83 - Community system of reliefs from customs duty
1. Where its decisions may be appealed to a supreme court, a national court or tribunal
is not under the obligation referred to in the third paragraph of Article 234 EC to refer a
question to the Court of Justice for a preliminary ruling even if examination of the merits
by the supreme court is subject to a prior declaration of admissibility. (see paras 16, 19,
operative part 1)
2. The question whether an importation of goods is non-commercial, within the meaning
of Article 45(2)(b) of Regulation No 918/83 setting up a Community system of reliefs
from customs duty, as amended by Regulation No 355/94, must be examined case by case
on the basis of an overall assessment of the circumstances, taking into account the nature
of the importation and the quantity of goods involved, the frequency with which the same
goods are imported by the traveller concerned, but also, where appropriate, taking into
account that traveller's lifestyle and habits or his family environment. (see para. 27,
operative part 2)
3. Article 45 of Regulation No 918/83 setting up a Community system of reliefs from
customs duty, as amended by Regulation No 355/94, precludes national administrative
instructions or practices which impose binding quantitative limits on relief from customs
duties or which would have the effect of creating an irrebuttable presumption that the
importation concerned is commercial by reason of the quantity of goods imported. (see
para. 33, operative part 3) _________________________________________________
T-49/00 – 30/1/01 – Industria pugliese olive in salamoia erbe aromatiche Snc (Iposea) v
Commission of the European Communities (European Court reports 2001 Page II-00163)
Common Customs Tariff - Regulation amending the combined nomenclature - Action for
annulment – Inadmissibility
1. Article 1(2)(c) and the second subparagraph of Article 2(1) 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 entry in the accounts of the amount originally required of the
person liable for payment is an official act which precedes notification regarding
recovery and actual recovery and which does not necessarily consist in entry by the
customs authority in the accounts books, or any other medium used in their stead, of the
amount in question.
2. Article 2(2) of Regulation No 1697/79 must be interpreted as meaning that, where an
initial act determining the amount of levies payable is annulled and replaced by a second
act which, without altering the basis for recovery, fixes such levies in an amount lower
than that which was initially decided, the action for recovery must be considered to have
been set in motion by the initial act.
3. Neither Article 254 of the Act concerning the conditions of accession of the Kingdom
of Spain and the Portuguese Republic and the adjustments to the Treaties nor the
provisions of Commission Regulation (EEC) No 3771/85 of 20 December 1985 on stocks
of agricultural products in Portugal nor of Commission Regulation (EEC) No 579/86 of
28 February 1986 laying down detailed rules relating to stocks of products in the sugar
sector in Spain and Portugal on 1 March 1986 preclude the Portuguese Republic from
requiring of traders holding surplus stocks of sugar which they should have been able to
export within the period prescribed for that purpose to pay the levy provided for by
Article 7(1) of Regulation No 579/86.
4. The customs authorities of a Member State must refrain from carrying out
post-clearance recovery of duties pursuant to Article 5(2) of Regulation No 1697/79
where:
- the duties have not been collected on account of an error of interpretation or
application of the provisions on the levy in question in so far as it is the consequence of
acts of the competent authorities, which excludes errors caused by incorrect declarations
by the person liable,
- the person liable acting in good faith could not reasonably have detected that error,
despite his professional experience and the diligence shown by him, and
- the person liable has complied with all the provisions laid down by the rules in force as
far as concerns the declaration of the event to which the collection of the levy in question
relates. ________________________________________________________________
C-10/00 – 7/3/02 – Commission of the European Communities v Italian Republic
(European Court reports 2002 Page I-02357)
Failure by a Member State to fulfil its obligations - Community own resources - Import
from third countries of goods destined for San Marino
1. Although, by virtue of the Community customs provisions, on the one hand the territory
of the Republic of San Marino formed part of the customs territory of the Community and
the Community customs legislation, in principle, applied to movements of goods destined
for or coming from San Marino and, on the other hand, the introduction of goods into the
customs territory of the Community meant that those goods were subject to customs
control until they were assigned a customs-approved treatment in conformity with
Community law, imports from third countries of goods destined for San Marino were the
subject of a specific customs-approved treatment recognised by Community law, namely
the customs procedure under the San Marino/Italy Agreement. The introduction into the
customs territory of the Community of goods destined for San Marino and their
subjection to the customs formalities prescribed for that destination did not in themselves
give rise to a customs debt. It follows from Article 2(a) of Directive 79/623 on the
harmonisation of provisions laid down by law, regulation or administrative action
relating to customs debt and Article 2(1)(a) of Regulation No 2144/87 on customs debt
that, in order for a customs debt to arise within the meaning of those provisions, goods
liable to import duties must be placed in free circulation within the customs territory of
the Community. The specific nature of the import procedures applicable to goods
destined for San Marino, inasmuch as the customs procedure provided specifically that
those goods were not placed in free circulation following their importation into the
customs territory of the Community, precluded the application of those Community
provisions relating to the creation of a customs debt.
It follows that the introduction into the customs territory of the Community of goods
destined for San Marino and the completion of the customs formalities prescribed for that
destination did not in themselves constitute events giving rise to Communities' own
resources by way of Common Customs Tariff duties or other duties established or to be
established by the institutions. (see paras 74-80)
2. As to the burden of proof with regard to the allocation to the Communities' own
resources of duties levied on imports destined for San Marino, it should be borne in mind
that the Member States are required, under Article 5 of the Treaty (now Article 10 EC),
to facilitate the achievement of the Commission's tasks, which consist in particular,
pursuant to Article 155 of the Treaty (now Article 211 EC), in ensuring that the
provisions of the Treaty and the measures taken by the institutions pursuant thereto are
applied. The implementation of the arrangements relating to imports destined for San
Marino creates an obligation on the part of the Italian Republic to take, in sincere
cooperation with the Commission, the measures needed to ensure the application of the
Community provisions relating to establishment of possible own resources. In particular,
it follows from that obligation that where the Commission is largely dependent on the
information provided by the Member State concerned, and that it is established that the
shortcomings in the controls carried out by the Member State have created a serious risk
of loss of own resources for the Community, that Member State is required to make
supporting documents and other relevant documentation available to the Commission,
under reasonable conditions, to enable it to verify whether, and, as the case may be, to
what extent the amounts concerned relate to Communities' own resources. (see paras 87-
89, 91)
_______________________________________________________________________
C-479/99 – 7/6/01 – CBA Computer Handels- und Beteiligungs GmbH, formerly
VOBIS Microcomputer AG v Hauptzollamt Aachen (European Court reports 2001 Page
I-04391)
Electronic circuit boards which enable automatic data-processing equipment and units
thereof to process audio signals (sound cards), and which have no specific function
within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature, are to be
classified under heading 8471 of the Combined Nomenclature, as amended by Regulation
No 1153/97 amending Annex I to Regulation No 2658/87 on the tariff and statistical
nomenclature and on the Common Customs Tariff.
(see paras 27-28 and operative part)
_______________________________________________________________________
C-371/99 – 11/7/02 – Liberexim BV v Staatssecretaris van Financiën (European Court
reports 2002 Page I-06227)
Article 7(3) of the Sixth Directive 77/388 on the harmonisation of the laws of the Member
States relating to turnover taxes, as amended by Directive 92/111 amending Directive
77/388 and introducing simplification measures with regard to value added tax, provides
that, as regards goods which enter the Community under one of the specific customs
arrangements referred to in that article, the place of importation of goods, as an
operation incurring value added tax, is the Member State on whose territory the goods
cease to be covered by those arrangements.
Where goods, transported by road under the external Community transit arrangements,
are placed on the Community market after a number of irregularities or offences have
been committed successively in various Member States, in order to determine the place
and the time at which those goods cease to be covered by the arrangements within the
meaning of the abovementioned provision, where there is no applicable provision in
Regulation No 2726/90 on Community transit, reference must be made to Article 2(1) of
Regulation No 2144/87 on customs debt and, in particular, to points (c) and (d) of that
provision.
The place where the goods cease to be covered by the customs arrangement referred to in
Article 7(3) of the Sixth Directive is not only the place where the tax liability is incurred
under that directive but also the place where the customs debt is incurred. However,
where a number of irregularities of the kind which fall within the scope of Article 2(1)(c)
and (d) of Regulation No 2144/87 have been committed in various Member States, those
provisions do not specify which of those irregularities is decisive for determining the time
and place where the customs debt is incurred. In that respect, the fact that goods have
been placed under the external Community transit arrangements implies that those goods
must be placed under customs supervision from the start of operations on Community
territory until the recovery of import duties which fall due as a result of the goods
ceasing to be covered by those arrangements.
The first operation carried out in contravention of the external Community transit
arrangements does not necessarily cause the goods to cease to be covered by those
arrangements; an irregularity which constitutes a removal of the goods from customs
supervision always gives rise to a customs debt and, thus, to the goods ceasing to be
covered by the customs arrangements in question. Consequently, the goods cease to be
covered by those arrangements within the meaning of Article 7(3) of the Sixth Directive
on the territory of the Member State where the first operation which can be regarded as a
removal of the goods from customs supervision was carried out.
Any act or omission which prevents, if only for a short time, the competent customs
authority from gaining access to goods under customs supervision and from monitoring
them as provided for by the Community customs provisions must be regarded as a
removal of the goods in question from customs supervision.
Such removal of goods from customs supervision does not require intent, but, instead,
only that certain objective conditions be met.
( see paras 38, 43-45, 50-52, 57, 61, operative part, paras 1-2 )
_______________________________________________________________________
T-330/99 – 7/6/01 – Spedition Wilhelm Rotermund GmbH v Commission of the
European Communities (European Court reports 2001 Page II-01619)
Article 905(1) of Commission Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code, on
the basis of which a request is made to the Commission by the national customs authority
which, presented with an application for remission of duties in respect of which it had
made an initial assessment, considers that there is evidence of the existence of a special
situation justifying the remission of duties, to make a definitive assessment on the basis of
the information placed before it as to whether a special situation exists, includes a
general equitable provision designed to cover the exceptional situation in which the
economic operator concerned might find himself in comparison with other operators
engaged in the same business.
In order to determine whether the facts in question constitute a special situation within
the meaning of that provision, the Commission must, in the context of the broad margin
of assessment it enjoys in that respect, assess all the facts and must balance, on the one
hand, the Community interest in ensuring that the customs provisions are respected and,
on the other, the interest of the economic operator acting in good faith not to suffer harm
beyond normal commercial risk.
Where the factual information constituting the fraud, which has been sent to the
Commission by the national authorities, is not questioned or supplemented, because the
Commission has not asked for additional information, and where it derives from purely
internal operations of the administration of a Member State which the applicant has no
right to monitor, and which it can not influence in any way, the Commission cannot
merely make a finding that the applicant is not in a special situation since those
circumstances go beyond the commercial risk it would normally incur.
In those circumstances, the Commission is not entitled to limit the scope of its assessment
to the possibility of active complicity by a particular customs official and to require the
applicant to supply, if necessary by producing a document from the competent national
authorities, formal and definitive proof of such complicity. By doing so the Commission
fails to appreciate both its obligation to assess all the facts itself in order to determine
whether they constitute a special situation, and the autonomous nature of the procedure
laid down in Article 905 et seq. of the implementing regulation.
( see paras 52-55, 57-58 )
_______________________________________________________________________
C-288/99 – 10/5/01 – VauDe Sport GmbH & Co. KG v Oberfinanzdirektion Koblenz
(European Court reports 2001 Page I-03683)
National levy on pigs - Charge having an equivalent effect - Internal taxation - Levy
scheme authorised by the Commission as State aid compatible with the common market
-Levy incompatible with provisions of the EC Treaty other than Articles 92 of the EC
Treaty (now, after amendment, Article 87 EC) and 93 of the EC Treaty (now Article 88
EC) - Discretion of the national courts
1. A levy charged by a body established under public law according to identical criteria
on pigs produced in a Member State for slaughter on the domestic market or for live
export to other Member States, the revenue from which is allocated to activities
benefiting the two types of production, does not fall under the prohibition of charges
having equivalent effect to customs duties on exports within the meaning of Article 9 of
the Treaty (now, after amendment, Article 23 EC), Article 12 of the Treaty (now, after
amendment, Article 25 EC) and Article 16 of the Treaty (repealed by the Treaty of
Amsterdam). Such a levy may, however, be classified as discriminatory internal taxation
prohibited by Article 95 of the Treaty (now, after amendment, Article 90 EC) if and to the
extent to which the advantages deriving from the use made of its revenue compensate in
part the charge imposed on pigs produced for slaughter in the Member State concerned,
thereby placing at a disadvantage the production of pigs for live export to other Member
States. (see para. 49, operative part 1)
2. The fact that a national levy is intended to finance an aid scheme authorised by the
Commission pursuant to the Treaty provisions on State aid does not preclude a national
court from examining whether such a levy is compatible with other directly effective
Treaty provisions.
This assessment carried out by national courts makes it possible to guarantee individuals
the legal protection deriving from the direct effect of the Community law provisions and,
should those provisions be infringed, to re-establish internal legality, without thereby
encroaching on the central and exclusive role which Articles 92 (now, after amendment,
Article 87 EC) and 93 (now Article 88 EC) of the Treaty reserve to the Commission in
determining whether aid is compatible with the common market.
(see paras 62, 65, operative part 2)
_______________________________________________________________________
C-226/99 – 11/1/01 – Siples Srl, in liquidation v Ministero delle Finanze and Servizio
della Riscossione dei Tributi - Concessione Provincia di Genova - San Paolo Riscossioni
Genova SpA (European Court reports 2001 Page I-00277)
Release of goods for free circulation - Expiry of the period within which a
customs-approved use must be assigned - Procedure for putting goods up for sale or
levying an ad valorem duty
Customs duties - Importation of television sets from India - Invalid certificates of origin
-Application for remission of import duties - Article 13(1) of Regulation (EEC) No
1430/79 - Rights of the defence - Special situation
The Combined Nomenclature of the Common Customs Tariff as set out in Annex I to
Regulation No 2658/87 on the tariff and statistical nomenclature and on the Common
Customs Tariff, as amended by the Annexes to Regulations Nos 2886/89, 2472/90 and
2587/91, must be interpreted as meaning that between 1990 and 1992 satellite television
receivers, which are devices designed to convert television signals previously broadcast
by satellite, received by aerials and processed by converters, so that they can be treated
in order to become visible on screen, were to be classified under tariff heading 8528
(television receivers).
(see paras 21, 25 and operative part)
_______________________________________________________________________
C-187/99 – 22/2/01 – Fazenda Pública v Fábrica de Queijo Eru Portuguesa Ldª,
intervener Ministério Público (European Court reports 2001 Page I-01429)
Free movement of goods - Common Customs Tariff - Tariff heading - Cheese or casein
-Regulation (EEC) No 3174/88
Failure by a Member State to fulfil its obligations - Free movement of goods - Procedures
for detention under customs control - Goods in transit - Industrial property right - Spare
parts for the repair of motor vehicles
1. The costs of analyses designed to establish the conformity of imported goods with the
national legislation of the importing Member State, which the importer invoices to the
buyer in addition to the price of the goods, must be regarded as an integral part of their
transaction value within the meaning of Article 3(1) of Regulation No 1224/80 on the
valuation of goods for customs purposes inasmuch as the analyses are necessary in order
for the goods to be delivered in accordance with the provisions of the contract. The costs
pertaining to those analyses must be regarded as part of the payments made or to be
made as a condition of sale of the imported goods by the buyer to the seller ... to satisfy
an obligation of the seller within the meaning of Article 3(3)(a) of Regulation No
1224/80. (see paras 23-24, 27 and operative part 1)
2. Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import duties
or export duties which have not been required of the person liable for payment of goods
entered for a customs procedure involving the obligation to pay such duties, makes
waiver of post-clearance recovery by the national authorities subject to three cumulative
conditions, namely that non-collection of the duties must have been as a result of an error
made by the competent authorities themselves; the error must be such that it could not
reasonably be detected by the person liable acting in good faith; and the person liable
must have complied with all of the provisions laid down by the rules in force as far as his
customs declaration is concerned.
It follows that the customs authorities of a Member State must refrain from post-
clearance recovery of duty pursuant to that provision, if, at a previous on-the-spot
inspection of importations, they raised no objection to the non-inclusion of flat-rate
expenses in the customs value of similar transactions and it does not appear that the
trader, who had complied with all of the provisions laid down by the rules in force as far
as his customs declaration is concerned, could have been in doubt about the correctness
of the results of the inspection.
(see paras 35-37, 39-40 and operative part 2)
_______________________________________________________________________
C-1/99 – 11/1/2001 – Kofisa Italia Srl v Ministero delle Finanze, Servizio della
Riscossione dei Tributi - Concessione Provincia di Genova - San Paolo Riscossioni
Genova SpA (European Court reports 2001 Page I-00207)
1. Neither the wording of Article 177 of the Treaty (now Article 234 EC) nor the aim of
the procedure established by that article indicates that the framers of the Treaty intended
to exclude from the jurisdiction of the Court requests for a preliminary ruling on a
Community provision where the domestic law of a Member State refers to that
Community provision in order to determine the rules applicable to a situation which is
purely internal to that State.
Where, in regulating internal situations, domestic legislation adopts the same solutions
as those adopted in Community law so as to provide for one single procedure in
comparable situations, it is clearly in the Community interest that, in order to forestall
future differences of interpretation, provisions or concepts taken from Community law
should be interpreted uniformly, irrespective of the circumstances in which they are to
apply. (see paras 21, 32)
2. Article 243 of Regulation No 2913/92 establishing the Community Customs Code is to
be interpreted as meaning that it is for national law to determine whether a trader must
initially lodge an appeal against a decision of the customs authorities before the customs
authority or whether he may appeal directly to the judicial authority. Article 243 forms
part of Title VIII of the Customs Code, on appeals. Unlike a considerable number of the
substantive provisions of the Customs Code, the provisions in that title concern only a
number of essential aspects relating to the protection of the traders concerned, but do not
lay down detailed rules governing the appeals procedure. Therefore, in adopting only the
broad outlines of the appeals procedure, the Community legislature did not preclude that
national law might authorise a trader, in appropriate circumstances, to lodge an appeal
directly before an independent authority. Nor is there anything in the Community
legislation to support the conclusion that it authorises a trader to bypass an appeal
before the customs authority and appeal directly to the independent body, where under
the applicable national law an appeal to the customs authority is mandatory. (see paras
37-39, 42-43, and operative part 1)
3. Article 244 of Regulation No 2913/92 establishing the Community Customs Code is to
be interpreted as meaning that it confers the power to suspend implementation of a
contested decision exclusively on the customs authorities. However, that provision does
not limit the power of the judicial authorities seised of a dispute pursuant to Article 243
of that Code to order such suspension in order to comply with their obligation to ensure
the full effectiveness of Community law. (see para. 49, and operative part 2) _________
C-463/98 – 10/5/01 – Cabletron Systems Ltd v The Revenue Commissioners (European
Court reports 2001 Page I-03495)
While illegal imports or supplies of goods which by their very nature or because of their
special characteristics cannot be lawfully marketed or introduced into economic
channels, such as narcotic drugs or counterfeit currency, are not subject to the taxes and
customs duties normally payable under Community legislation, the principle of fiscal
neutrality prevents any general distinction between lawful and unlawful transactions,
apart from such cases where any competition between a lawful economic sector and an
unlawful sector is precluded.
Ethyl alcohol imported as contraband from a non-member country is not a product
whose marketing is prohibited by its very nature or because of its special characteristics.
Nor may ethyl alcohol be regarded as a product which is outside economic channels,
since competition is possible between the contraband product and that traded in lawful
economic channels, in that there is a lawful market in alcohol which is precisely the
target of contraband products.
Sixth Directive 77/388, Directive 92/12 on the general arrangements for products subject
to excise duty and on the holding, movement and monitoring of such products, Directive
92/83 on the harmonisation of the structures of excise duties on alcohol and alcoholic
beverages, and Regulation No 2913/92 establishing the Community Customs Code must
therefore be interpreted as meaning that their provisions on liability to tax and tax debts
apply also to contraband importation into Community customs territory of ethyl alcohol
from non-member countries.
(see paras 19-20 and operative part)
_______________________________________________________________________
C-441/98 and C-442/98 – 21/9/2000 – Kapniki Michaïlidis AE v Idryma Koinonikon
Asfaliseon (European Court reports 2000 Page I-07145)
Charges having equivalent effect - Tobacco exports - Levy imposed for the benefit of a
social fund
1. An ad valorem charge on exported tobacco products, which is not levied either on the
same tobacco products when they are sold on the domestic market or on those imported
from another Member State, cannot escape, by reason of its social objective,
classification as a charge having equivalent effect to a customs duty on exports that is
incompatible with Articles 9 and 12 of the Treaty (now, after amendment, Articles 23 EC
and 25 EC) and Article 16 of the Treaty (repealed by the Treaty of Amsterdam), unless
the allegedly comparable charge levied on domestic products is applied at the same rate,
at the same marketing stage and on the basis of a chargeable event which is identical to
that giving rise to a charge on exports. (see para. 26 and operative part 1)
2. Although Community law does not preclude a Member State from refusing repayment
of charges levied in breach of its provisions where it is established that repayment would
entail unjust enrichment, it does preclude any presumption or rule of evidence intended
to shift to the trader concerned the burden of proving that the charges unduly paid have
not been passed on to other persons and to prevent him from adducing evidence in order
to refute any allegation that the charges have been passed on. ( see para. 42 and
operative part 2) ________________________________________________________
C-383/98 – 6/4/2000 – The Polo/Lauren Company LP v PT. Dwidua Langgeng Pratama
International Freight Forwarders (European Court reports 2000 Page I-02519)
Note 5(B) to Chapter 84 of the Combined Nomenclature of the Common Customs Tariff,
set out in Annex I to Regulation No 2658/87 on the tariff and statistical nomenclature and
on the Common Customs Tariff, as amended by the annexes to Regulations Nos 2886/89,
2472/90, 2587/91, 2505/92, 2551/93 and 3115/94, which provides inter alia that heading
No 8471 (automatic data-processing machines and units thereof) does not cover
machines incorporating or working in conjunction with an automatic data-processing
machine and performing a specific function, does not preclude the classification of
network cards designed to be installed in automatic data-processing machines under that
heading. Network cards are comparable with any other medium whereby an automatic
information processing machine accepts or delivers data in the sense that they have no
function which they would be capable of performing without the assistance of such a
machine. Accordingly network cards cannot in any event be regarded as performing a
specific function.
Between July 1990 and May 1995 the cards in question were therefore to be classified
under heading No 8471 as units of machines of the type referred to, as those cards satisfy
the conditions relating to units set out in that Note, since they can be connected to the
central unit and are specifically designed as parts of an automatic data-processing
system.
(see paras 16-17, 20, 24 and operative part)
_______________________________________________________________________
C-310/98 and C-406/98 – 23/3/2000 – Hauptzollamt Neubrandenburg v Leszek Labis
(C-310/98) and Sagpol SC Transport Miedzynarodowy i Spedycja (C-406/98) (European
Court reports 2000 Page I-01797)
Free movement of goods - External transit transaction - Movement under cover of a TIR
carnet - Offences or irregularities - Evidence of the place where the offence or
irregularity was committed - Time-limit for producing evidence - Types of evidence
admissible - Compensation procedure
1 As is apparent from Article 168a of the EC Treaty (now Article 225 EC) and the first
paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal is to be
limited to points of law and must be based on the grounds of lack of competence of the
Court of First Instance, a breach of procedure before it which adversely affects the
interests of the appellant or an infringement of Community law by the Court of First
Instance.
An appeal may be based only on grounds relating to the infringement of rules of law, to
the exclusion of any appraisal of the facts. The Court of First Instance has exclusive
jurisdiction, first, to establish the facts except where the substantive inaccuracy of its
findings is apparent from the documents submitted to it and, second, to assess those facts.
Where the Court of First Instance has established or assessed the facts, the Court of
Justice has jurisdiction under Article 168a of the EC Treaty to review the legal
characterisation of those facts by the Court of First Instance and the legal conclusions it
has drawn from them.
2 Under Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import
duties or export duties, three cumulative conditions must be satisfied for the purposes of
waiver by the competent authorities of post-clearance recovery of import duties, namely
that non-collection must have been due to an error by the authorities, that the person
liable must have acted in good faith and that he must have complied with all the
provisions laid down by the legislation in force so far as his customs declaration is
concerned.
With regard to the first condition, this cannot be regarded as satisfied if the competent
authorities were misled, in particular as to the origin of the goods, by incorrect
declarations on the part of the exporter, the validity of which they did not have to check
or assess. Only errors attributable to acts of the competent authorities confer entitlement
to the waiver of post-clearance recovery of customs duties.
Moreover, the person liable, a bona fide importer, cannot claim that the principle of the
protection of legitimate expectations has been infringed where it is the responsibility of
traders to make the necessary arrangements in their contractual relations in order to
guard against the risks of an action for post-clearance recovery.
3 Under Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-
matter of the proceedings before the Court of First Instance may not be changed in the
appeal. Were a party to be allowed to put forward for the first time before the Court of
Justice a plea in law which it had not raised before the Court of First Instance, that
would enable it to bring before the Court, whose jurisdiction in appeals is limited, a case
of wider ambit than that which came before the Court of First Instance. In an appeal, the
jurisdiction of the Court of Justice is confined to review of the assessment made by the
Court of First Instance of the pleas argued before it.
4 Article 42(2) of the Rules of Procedure of the Court of Justice, which is applicable to
appeal proceedings by virtue of Article 118 of those Rules, provides that no new plea in
law may be introduced in the course of proceedings unless it is based on matters of law
or of fact which come to light in the course of the procedure. Therefore a plea raised for
the first time by the appellant in its reply in the proceedings before the Court of Justice,
concerning a regulation adopted and published before the date on which the appeal was
lodged, must be rejected as manifestly inadmissible.
_______________________________________________________________________
C-233/98 – 21/10/99 – Hauptzollamt Neubrandenburg v Lensing & Brockhausen
GmbH (European Court reports 1999 Page I-07349)
Taxes on imported goods - Taxable value - Articles 30 and 95 of the EC Treaty (now,
after amendment, Articles 28 EC and 90 EC) - Regulation (EEC) No 1224/80
1. Article 95 of the Treaty (now, after amendment, Article 90 EC) precludes national
legislation which prescribes a method of calculating taxable value for the purposes of
turnover tax, stamp duty and a special consumption tax, where that method varies
according to whether the taxes are to be levied on domestic products or imported
products, with the result that the latter are taxed more heavily. (see para. 51, operative
part 1)
2. Article 95 of the Treaty (now, after amendment, Article 90 EC), or Articles 9 and 12
thereof (now, after amendment, Articles 23 EC and 25 EC), preclude national legislation
on the application of a tax, such as a regularising tax, under which that tax is payable on
goods from another Member State but not on equivalent goods produced in the national
territory. (see para. 51, operative part 2)
3. Regulation No 1224/80 on the valuation of goods for customs purposes, which is based
on Article 113 of the EC Treaty (now, after amendment, Article 133 EC), concerns solely
trade with non-member countries and does not therefore apply to trade between Member
States. (see para. 53, operative part 3)
4. Pursuant to the principle of cooperation laid down in Article 5 of the Treaty (now
Article 10 EC), it is for the courts and tribunals of the Member States to ensure the legal
protection which individuals derive from the direct effect of Community law. In the
absence of Community rules governing a matter, it is for the domestic legal system of
each Member State to lay down the detailed procedural rules governing actions for
safeguarding rights which individuals derive from the direct effect of Community law.
However, such rules must not be less favourable than those governing similar domestic
actions nor render virtually impossible or excessively difficult the exercise of rights
conferred by Community law. (see paras 58, 69)
5. Community law precludes national legislation which requires customs authorities to
withhold imported goods in the event of disputes concerning the amount of tax demanded,
unless the person concerned pays that amount, if that procedure is less favourable than
the procedure applicable to similar domestic actions or if, in practice, it makes it
virtually impossible or excessively difficult for the person concerned to import goods
from other Member States. (see para. 61, operative part 4)
6. The Treaty does not preclude a provision of national law under which disputes
concerning the levying of taxes on imported products are to be settled by administrative
procedure, which may have an effect on the importation of products, provided that there
is no comparable procedure applicable to disputes concerning domestic products which
is predisposed in their favour and that decisions by the administrative authorities
refusing or restricting imports are open to judicial review.
(see para. 67, operative part 5)
7. Community law does not preclude a provision of national law under which, in judicial
proceedings in which it is sought to establish State liability with a view to obtaining
compensation for damage caused by a breach of Community law, witness evidence is
admissible only in exceptional cases, provided that such a provision applies also to
similar domestic actions and that it does not prevent individuals from asserting rights
which they derive from the direct effect of Community law.
(see para. 72, operative part 6)
_______________________________________________________________________
C-223/98 – 14/10/99 – Adidas AG (European Court reports 1999 Page I-07081)
Free movement of goods - Regulation (EC) No 3295/94 - Prohibition of release for free
circulation, export, re-export or entry for a suspensive procedure of counterfeit and
pirated goods - Provision of national law requiring the names of consignees of
consignments detained by the customs authorities pursuant to the regulation to be kept
confidential - Compatibility of the provision with Regulation (EC) No 3295/94
Common Customs Tariff - Tariff headings - Tariff classification of certain hardware for
use in local area computer networks - Classification in the Combined Nomenclature
Tax on the supply of CB sets - Charge having equivalent effect - Internal taxation
-Applicability of the prohibition thereof of trade with non-member countries
1 Articles 9 and 12 of the Treaty preclude a tax borne by manufacturers, importers and
persons making supplies in a Member State of radio transceivers operating on two-way
channels (`CB sets'), imported from other Member States, such as the tax governed by
Article 302 bis (X) of the French Code Général des Impôts.
Such a tax constitutes not internal taxation within the meaning of Article 95 of the Treaty
but a charge having an effect equivalent to a customs duty. It does not relate to a general
system of internal dues applied systematically to categories of products in accordance
with objective criteria irrespective of the origin of the products, since it differs from the
method of taxing other equipment using the Hertzian radio spectrum in that the tax is
levied on the supply, not the use.
2 Articles 9, 12 and 113 of the Treaty preclude a tax borne by manufacturers, importers
and persons making supplies in a Member State of radio transceivers operating on two-
way channels (`CB sets'), imported from other Member States, such as the tax governed
by Article 302 bis (X) of the French Code Général des Impôts.
Since the introduction of the Common Customs Tariff, the levying of a customs duty or
charge having equivalent effect, unilaterally introduced by a Member State in respect of
goods imported directly from non-member countries, is contrary to those provisions.
_______________________________________________________________________
C-61/98 – 7/9/99 – De Haan Beheer BV v Inspecteur der Invoerrechten en Accijnzen te
Rotterdam (European Court reports 1999 Page I-05003)
Customs duties - External transit - Fraud - Incurrence and recovery of a customs debt
Procedural rules are generally held to apply to all proceedings pending at the time when
those rules enter into force, whereas substantive rules are usually interpreted as not
applying to situations existing before their entry into force.
Community law does not impose on customs authorities who have been informed of a
possible fraud in connection with external transit arrangements any obligation to warn a
principal that he may incur liability for customs duty as a result of the fraud, even where
he has acted in good faith.
Article 11(1)(c) of Regulation No 2726/90 on Community transit provides that a principal
is, as a rule, responsible for payment of duties due `as a result of an offence or
irregularity committed in the course of or in connection with a Community transit
operation' and does not require, in order for the customs debt to arise, that the principal
be shown to be at fault or that the customs authorities be obliged in any way to inform the
principal that an investigation has been carried out and has led to the discovery of an
offence or irregularity.
Failure on the part of the customs authorities, when taking action for the post-clearance
recovery of customs duties, to observe the time-limits laid down in Articles 3, 5 and 6(1)
of Regulation No 1854/89 on the entry in the accounts and terms of payment of the
amounts of the import duties or export duties resulting from a customs debt does not
nullify the right of those authorities to proceed with such recovery, provided that it is
carried out within the time-limit laid down in Article 2(1) of Regulation No 1697/79. A
deliberate omission on the part of the customs authorities - acting in the interests of an
investigation aimed at identifying and apprehending the persons who have carried out or
are planning a fraud, or the accomplices of those persons - to inform a principal of a
possible fraud in which the principal is not implicated cannot, in any event, be classified
as an error on the part of the competent authorities within the meaning of Article 5(2) of
Regulation No 1697/79 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.
Article 13(1) of Regulation No 1430/79 on the repayment or remission of import or
export duties, as amended by Regulation No 3069/86, makes repayment or remission
subject to two cumulative conditions, namely the existence of a special situation and the
absence of deception or obvious negligence on the part of the economic operator. In this
connection, the list, set out in Article 4 of Regulation No 3799/86, of special situations
within the meaning of Article 13(1) is not exhaustive. It is therefore for the customs
authorities to determine on a case by case basis whether a situation which is not
mentioned in that list none the less constitutes a situation which is special within the
meaning of the applicable Community legislation.
Where the customs authority has been unable to take a decision on the remission of
duties, the Member State to which the authority belongs transmits the case to the
Commission to be settled under the procedure laid down in Articles 905 to 909 of
Regulation No 2454/93. In that context, Article 905 - pursuant to which the Commission
is asked by the customs authority to determine, on the basis of the information placed
before it, whether a special situation exists such as to justify the remission of duties -
includes a general fairness clause intended to cover the exceptional situation in which a
declarant might find himself in comparison with other operators engaged in the same
business. In that connection, the demands of an investigation conducted by the national
authorities may, in the absence of any deception or negligence on the part of the person
liable, and where that person has not been informed that the investigation is being
carried out, constitute a special situation within the meaning of Article 13(1) of
Regulation No 1430/79 where the fact that the national authorities have, in the interests
of the investigation, deliberately allowed offences or irregularities to be committed, thus
causing the principal to incur a customs debt, places the principal in an exceptional
situation in comparison with other operators engaged in the same business.
_______________________________________________________________________
C-48/98 – 11/11/99 – Firma Söhl & Söhlke v Hauptzollamt Bremen (European Court
reports 1999 Page I-07877)
1 Article 859 of Regulation No 2454/93 laying down provisions for the implementation of
Regulation No 2913/92 establishing the Community Customs Code contains a validly
constituted and exhaustive set of rules on failures, within the meaning of Article
204(1)(a) of Regulation No 2913/92, which `have no significant effect on the correct
operation of the temporary storage or customs procedure in question' and which, being
an exception to the rule that a customs debt is incurred through the non-fulfilment of one
of the obligations arising from the temporary storage of goods, do not give rise to a
customs debt.
The Council did not, in Article 204, reserve the right to list exhaustively the categories of
failures referred to in that provision. Secondly, by Article 249 of the Customs Code, it
conferred on the Commission the task of adopting the provisions required for
implementation of the Customs Code, with the exception of certain specific provisions
which do not include Article 204. Furthermore, since the Council has laid down in its
basic regulation the essential rules governing the matter in question, it may delegate to
the Commission general implementing power without having to specify the essential
components of the delegated power; for that purpose, a provision drafted in general
terms provides a sufficient basis for the authority to act. Moreover, the exhaustive set of
rules laid down by Article 859 of the implementing Regulation is necessary and
appropriate for the implementation of the Customs Code and it is not contrary to that
Code.
2 According to the second indent of Article 859 of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code, a customs debt is not incurred through failure to fulfil obligations arising
from the temporary storage of goods, where that failure has no significant effect on the
correct operation of the temporary storage or customs procedure in question, provided
that it does not imply obvious negligence (`grobe Fahrlässigkeit' in the German version)
on the part of the person concerned. Secondly, according to the second indent of Article
239(1) of the Customs Code, and the first indent of Article 899 and Article 905(1) of the
implementing Regulation, repayment or remission of customs duties is conditional
primarily on there being no deception or obvious negligence (`offensichtliche
Fahrlässigkeit' in the German version) attributable to the person concerned.
A comparison of all the language versions of the abovementioned provisions indicates
that the terms qualifying negligence are not used consistently. It must therefore be
concluded that the legislature was not pursuing a particular objective by using different
terms in the German version. Accordingly, it must be considered that the terms which
qualify negligence in the abovementioned rules - including the term `offenkundige
Fahrlässigkeit' (manifest negligence) in Article 212a of the Customs Code - all have one
and the same meaning and must be understood as referring to obvious negligence
(`offensichtliche Fahrlässigkeit' in the German version).
It is not possible, therefore, to conclude that there was no obvious negligence within the
meaning of the second indent of Article 239(1) of the Customs Code where the customs
debt was incurred pursuant to Article 204(1)(a) of the Customs Code because of conduct
constituting obvious negligence within the meaning of the second indent of Article 859 of
the implementing Regulation.
In order to determine, specifically, whether or not there is `obvious negligence' within the
meaning of the second indent of Article 239(1) of the Customs Code, account must be
taken in particular of the complexity of the provisions non-compliance with which has
resulted in the customs debt being incurred and the professional experience of, and the
care taken by, the trader. It is for the national court to determine, on the basis of those
criteria, whether there is obvious negligence on the part of the trader.
3 Community law does not preclude a national court from determining independently
whether the criterion laid down in Article 859(1) of Regulation No 2454/93 laying down
provisions for the implementation of Regulation No 2913/92 establishing the Community
Customs Code - namely that the time-limit allowed for assignment of the goods to one of
the customs-approved treatments or uses provided for under the temporary storage or
customs procedure in question ought to have been extended - is fulfilled where an
application for an extension made in time has been refused by a now unappealable
decision of the customs authority.
4 Only circumstances liable to put the applicant in an exceptional situation in relation to
other traders carrying on the same activity can justify an extension of the time-limit
allowed for assignment of the goods entered for clearance under Article 49(1) of
Regulation No 2913/92 establishing the Community Customs Code. Exceptional
circumstances which, although not unknown to the trader, are not events which would
normally confront any trader in the exercise of his occupation may constitute such
circumstances. It is for the customs authorities and the national courts to determine in
each case whether such circumstances exist.
Community law does not preclude a trader from lodging a single application for an
extension of the prescribed time-limit for assigning to goods covered by several summary
declarations a customs-approved treatment or use. However, even in the case of a single
application, the time-limit may be extended only in respect of goods in relation to which
the prescribed time-limit for assigning a customs-approved treatment or use has not yet
expired.
5 The customs authority or national court to which an application is submitted for
repayment of customs duties on the basis of Article 900(1)(o) of Regulation No 2454/93,
as amended by Article 1(29) of Regulation No 3254/94 - a provision which applies to
cases in which the goods would have been eligible for Community treatment or
preferential tariff treatment, but not to cases in which the goods would have been eligible
for other forms of favourable treatment - is required, where it is unable to grant the
repayment applied for pursuant to that provision, to examine of its own motion the merits
of that application in the light of the other provisions of Article 900 and Articles 901 to
904 of Regulation No 2454/93 listing the circumstances justifying repayment.
Where the decision-making authority is not in a position, on the basis of the grounds
adduced, to take a decision to repay or remit duties, it is required to examine of its own
motion whether there is any evidence `which might constitute a special situation resulting
from circumstances in which no deception or obvious negligence may be attributed to the
person concerned' within the meaning of Article 905(1) of Regulation No 2454/93 which
would necessitate examination of the file by the Commission.
6 Where an application is submitted for the repayment or remission of import or export
duties, the customs authority or national court cannot assume that the person concerned
has not acted with any fraudulent intent or in a manner which is obviously negligent on
the sole ground that he is in a situation referred to in Article 900(1)(o) of Regulation No
2454/93 laying down provisions for the implementation of Regulation No 2913/92
establishing the Community Customs Code, as amended by Article 1(29) of Regulation
No 3254/94.
_______________________________________________________________________
C-405/97 – 28/4/99 – Mövenpick Deutschland GmbH für das Gastgewerbe v
Hauptzollamt Bremen (European Court reports 1999 Page I-02397)
Combined nomenclature - Tariff heading 0802 - Dried walnut pieces temporarily stored
at a temperature of 24 ºC
1 The decisive criterion for the classification of goods for customs purposes is in general
to be sought in their objective characteristics and properties as defined in the wording of
the relevant heading of the Combined Nomenclature. There are also explanatory notes
drawn up, as regards the Nomenclature, by the Commission and, as regards the
Harmonised Commodity Description and Coding System, by the Customs Cooperation
Council, which are an important aid to the interpretation of the scope of the various tariff
headings but do not have legally binding force.
2 On a proper interpretation of the Combined Nomenclature, dried walnut pieces,
imported from a non-member country, which have been stored in the Community at a
temperature of -24o C and which, after thawing out, are cleared through customs to be
admitted into free circulation must be classified under tariff heading 0802 as `other nuts,
fresh or dried, whether or not shelled or peeled'.
According to the introductory notes to chapter 8 of the Nomenclature, chilled fruit and
nuts are to be classified in the same headings as the corresponding fresh fruit and nuts,
and according to the general considerations in chapter 8 of the Nomenclature of the
Customs Cooperation Council, the expression `frozen' means that the product has been
cooled to below its freezing point, whereas a `chilled' product is one whose temperature
has been reduced without the product being frozen.
However, dried walnuts do not contain water capable of being frozen; also, the treatment
applied to those goods did not lead, when the goods were warmed up by raising the
storage temperature, to any changes characteristic of freezing.
_______________________________________________________________________
C-394/97 – 15/6/99 – Criminal proceedings against Sami Heinonen (European Court
reports 1999 Page I-03599)
Combined Nomenclature - Headings Nos 3004 and 2106 - Vitamin C-based preparations
Poultry cuts made up of two hind quarters of a fowl still attached to one another by the
skin of the back constitute `quarters' (code 0207 41 11 000) within the meaning of the
nomenclature of agricultural products for export refunds established by Regulation No
3846/87.
First, because of their composition, the products in question correspond exactly to the
definition of hind quarters in accordance with the general rules for the interpretation of
the combined nomenclature, with one difference, namely that, because of the way in
which they are cut, the two quarters are not wholly separated; secondly, that fact does
not affect the product's essential characteristic - within the meaning of general rule 2(a)
for the interpretation of the combined nomenclature - of being constituted of two hind
quarters of chicken.
_______________________________________________________________________
T-290/97 – 18/1/2000 – Mehibas Dordtselaan BV v Commission of the European
Communities (European Court reports 2000 Page II-00015)
1. Observance of the right to be heard is, in all proceedings initiated against a person
which are liable to culminate in a measure adversely affecting that person, a fundamental
principle of Community law which must be guaranteed even in the absence of any rules
governing the proceedings in question. In view of the margin of assessment enjoyed by
the Commission in adopting a decision pursuant to the general equitable provision
contained in Article 13 of Regulation No 1430/79 on the repayment or remission of
import or export duties, it is all the more important that respect for the right to be heard
be guaranteed in procedures initiated pursuant to that Regulation.
Consequently, a trader seeking repayment of customs duties pursuant to that provision
has the right to be heard during the procedure for the adoption of a decision on his
request.
The requirements implied by that principle are satisfied only partly by the statement for
the file mechanism introduced by Article 905 of Regulation No 2454/93, under which all
requests for repayment of import duties must be accompanied by a statement from the
person concerned that he has read the case transmitted to the Commission by the
competent national authorities and - where appropriate - that he has nothing to add.
Whilst that effectively enables the person concerned to exercise his right to be heard
during the first stage of the administrative procedure, which takes place at national level,
it in no way guarantees his rights of defence during the second stage of the procedure,
which takes place before the Commission once the national authorities have
communicated the case to it. The statement is made at a stage when the Commission has
not yet had an opportunity to consider the position of the person concerned, let alone
come to a provisional view on his application for repayment. The right to be heard must
be guaranteed at both stages. However, such a breach of the rights of the defence cannot
result in the annulment of the contested decision unless it is established that without the
irregularity the procedure might have had a different outcome. (see paras 44-47)
2. The right to rely on the principle of the protection of legitimate expectations extends to
any individual in a situation where the Community authorities have caused him to
entertain legitimate expectations. However, a person may not plead infringement of the
principle unless he has been given precise assurances by the administration. (see para.
59)
3. Article 13 of Regulation No 1430/79, which provides that import duties may be repaid
or remitted in special situations ... which result from circumstances in which no
deception or obvious negligence may be attributed to the person concerned, constitutes a
general equitable provision designed to cover situations other than those which arise
most often in practice and for which special provision could be made when the regulation
was adopted. Article 13 is intended to apply, inter alia, where the circumstances
characterising the relationship between a trader and the administration are such that it
would be inequitable to require the trader to bear a loss which he would not normally
have incurred.
In applying that provision, the Commission enjoys a discretionary power which it must
exercise by balancing the Community interest in ensuring that customs rules are
respected against the interest of the importer acting in good faith not to incur loss beyond
the normal commercial risk.
However, a situation where the documents submitted by a customs agent, albeit in good
faith, are subsequently found to be false or incorrect does not amount to a special
situation justifying remission or repayment of customs duty. A customs agent, owing to
the very nature of his work, assumes liability for the payment of import duties and the
validity of the documents which he presents to the customs authorities, and any loss
caused by wrongful conduct on the part of his clients cannot be borne by the Community.
The possibility of receiving certificates of origin that are invalid, even though they have
been issued by the customs authorities of the countries mentioned on them, is one of the
trade risks assumed by customs agents. (see paras 76-78, 82-83)
4. The statement of reasons required by Article 190 of the EC Treaty (now Article 253
EC) must disclose clearly and unambiguously the reasoning followed by the institution
which adopted the measure, so as to enable the persons concerned to acquaint
themselves with the reasons for the measure and the Community judicature to exercise its
power of review. It is not necessary for the reasoning to go into all the relevant facts and
points of law. The question whether the statement of reasons meets those requirements
must be assessed with regard not only to its wording but also to its context and to all the
legal rules governing the matter in question.
(see para. 92)
_______________________________________________________________________
C-280/97 – 9/2/99 – ROSE Elektrotechnic GmbH & Co. KG v Oberfinanzdirektion
Köln (European Court reports 1999 Page I-00689)
Article 177 of the EC Treaty - Jurisdiction of the Court - National legislation reproducing
Community provisions - Relief from customs duties - Fuel on board motorised road
vehicles - Definition of 'standard tanks'
Free movement of goods - Products in free circulation - Act of Accession of the Republic
of Austria, the Republic of Finland and the Kingdom of Sweden - Derogations - Article
99
Article 99 of the Act concerning the conditions of accession of the Republic of Austria,
the Republic of Finland and the Kingdom of Sweden is to be interpreted as not having
permitted the Republic of Finland to levy, for a period of three years from its accession to
the Community on 1 January 1995, customs duties on imports of products which had
already been released into free circulation in another Member State.
The wording of Article 99 of the Act of Accession shows that that provision constitutes a
temporary derogation from the application in full of the Common Customs Tariff in trade
between the Republic of Finland and non-member countries as regards the products
referred to in Annex XI to the Act of Accession. It does not, however, provide for any
derogation from the principle of free movement of goods between Member States,
whether in relation to products originating in the Member States or to products
assimilated thereto.
_______________________________________________________________________
T-195/97 – 16/7/98 – Kia Motors Nederland BV and Broekman Motorships BV v
Commission of the European Communities (European Court reports 1998 Page II-02907)
Applications for the repayment or remission of import duties on equitable grounds, which
are submitted to the Commission pursuant to Article 239 of Regulation No 2913/92
establishing the Community Customs Code, in conjunction with Article 905 of Regulation
No 2454/93 laying down provisions for the implementation of Regulation No 2913/92,
are not concerned with whether or not the provisions of substantive customs law have
been correctly applied by the national customs authorities. Under Article 236 of the
Customs Code such a question falls within the exclusive competence of the national
authorities, whose decisions may be challenged before the national courts pursuant to
Article 243 of the Customs Code; those courts may make a reference to the Court of
Justice pursuant to Article 177 of the Treaty.
When it adopts a position on applications for repayment of import duties submitted
pursuant to the general equitable provision in Article 239 of the Customs Code, it is for
the Commission to indicate in respect of each such application whether or not special
circumstances within the meaning of that provision exist and to give reasons for its
decision on that point.
That requirement is not satisfied by a Commission decision rejecting an application
submitted on the basis of Article 239 of the Customs Code, the grounds of which give the
reasons why the Commission considers that the import duties imposed by the national
customs authority are legally payable, and the operative part of which answers the
questions whether the circumstances of the case enabled the importers to be exempted,
pursuant to the general equitable provision, from payment of the duties which were,
according to the formal legislative provisions, legally payable. Such a decision is
therefore vitiated by a failure to state reasons.
_______________________________________________________________________
T-186/97, T-187/97, T-190/97 à T-192/97, T-210/97, T-211/97, T-216/97, T-217/97,
T-218/97, T-279/97, T-280/97, T-293/97 and T-147/99 – 10/5/01 – Kaufring AG and
Others v Commission of the European Communities (European Court reports 2001 Page
II-01337)
2. As provided by Article 116(4) of the Rules of Procedure of the Court of First Instance,
an intervener may not go beyond the form of order sought by the party in support of
whom it is intervening, but it may freely choose its pleas and arguments in support of that
form of order. (see para. 137)
3. Observance of the rights of the defence in all proceedings which are initiated against a
person and are liable to culminate in a measure adversely affecting that person is a
fundamental principle of Community law which must be guaranteed even in the absence
of any rules governing the procedure in question. That principle requires that any person
who may be adversely affected by a decision be placed in a position in which he may
effectively make his views known, at least as regards the evidence on which the
Commission has based the contested decision. In view of the power of assessment enjoyed
by the Commission when it adopts a decision pursuant to the general equitable provision
contained in Article 13 of Regulation No 1430/79 relating to the remission or repayment
of import or export duties, it is all the more important that observance of the right to be
heard be guaranteed in procedures initiated pursuant to that regulation. That conclusion
is particularly apt where, in exercising its exclusive authority under Article 905 of
Regulation No 2454/93, the Commission proposes not to follow the opinion of the
national authority as to whether the conditions laid down by Article 13 of Regulation No
1430/79 have been met, in particular as to whether any obvious negligence can be
attributed to the person concerned. (see paras 151-153, 155)
6. Article 13(1) of Regulation No 1430/79, which provides that import duties may be
repaid or remitted in situations which result from circumstances in which no deception or
obvious negligence may be attributed to the person concerned constitutes a general
equitable provision.
In order to determine whether the circumstances of the case constitute a special situation
within the meaning of that provision the Commission must assess all the relevant facts.
That obligation implies that, in cases in which reliance is placed, in support of
applications for remission, on the existence of serious deficiencies on the part of the
contracting parties in implementing an agreement binding the Community, the
Commission must base its decision as to whether those applications are justified on all
the facts relating to the disputed imports of which it gained knowledge in the
performance of its task of supervising and monitoring the implementation of that
agreement. Similarly, it cannot disregard relevant information of which it has gained
knowledge in the performance of its tasks and which, although not forming part of the
administrative file at the stage of the national procedure, might have served to justify
remission for the interested parties.
Moreover, although the Commission enjoys a discretionary power in applying Article 13,
it is required to exercise that power by genuinely balancing, on the one hand, the
Community interest in ensuring that the customs provisions are respected and, on the
other, the interest of the importer acting in good faith in not suffering harm which goes
beyond normal commercial risks. Consequently, when considering whether an
application for remission is justified, it cannot take account only of the conduct of
importers. It must also assess the impact on the resulting situation of its own conduct,
which may itself have been wrongful. (see paras 216, 222-225)
7. Article 5(2) of Regulation No 1697/79 provides that 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. Thus, the legitimate
expectations of the person liable to pay qualify for the protection provided for by that
provision only if it was the competent authorities themselves which created the basis for
the expectations of the person liable. That condition cannot be regarded as fulfilled
where the competent authorities have been misled, in particular as to the origin of the
goods, by incorrect declarations made by the person liable, the validity of which those
authorities do not have to check or assess. In such circumstances, it is the person liable
to pay who must bear the risks arising from a commercial document which is found to be
false when subsequently checked.
Although Article 5(2) of the above Regulation and Article 13(1) of Regulation No
1430/79, which provides that the competent authorities may repay or remit import duties
in situations which result from circumstances in which no deception or obvious
negligence may be attributed to the person concerned, pursue the same aim the
provisions are not the same. The first has a more limited objective than the second, in so
far as it is intended solely to protect the legitimate expectation of the person liable to pay
that all the elements on which the decision whether or not to proceed with the recovery of
customs duties is based are correct while the second is a general equitable provision.
Thus, where the competent authorities did not enter the customs duties in the accounts
because they were misled by statements made by exporters, the person liable cannot rely
on Article 5(2) of Regulation No 1697/79. Similarly, as is clear from Article 4(2)(c) of
Regulation No 3799/86 and Article 904(c) of Regulation No 2454/93, the person liable
cannot argue that the presentation of invalid certificates and the consequent error of the
competent authorities are sufficient to constitute a special situation within the meaning of
Article 13 of Regulation No 1430/79. On the other hand, those provisions do not prevent
the person liable to pay from relying on other matters in support of his application for
remission under Article 13 of Regulation No 1430/79. For example, the error of the
competent authorities may itself have been made possible by inadequate monitoring by
the Commission of the implementation of the provisions of an association agreement and
such circumstances may constitute a special situation. (see paras 231-235)
8. Under Article 7 of the Agreement establishing an Association between the EEC and
Turkey the contracting parties are to take all appropriate measures, whether general or
particular, to ensure the fulfilment of the obligations arising from the agreement and to
refrain from any measures liable to jeopardise the attainment of its objectives. That
provision expresses the pacta sunt servanda principle and the principle of good faith
which must govern the conduct of the parties to an agreement in public international law.
(see para. 237)
9. Pursuant to Article 155 of the EC Treaty (now Article 211 EC) and the principle of
good administration, the Commission has a duty to ensure the proper application of the
Agreement establishing an Association between the EEC and Turkey and of the
Additional Protocol.
(see para. 257)
10. As envisaged by the Agreement establishing an Association between the EEC and
Turkey, it is for the Commission, in cases of doubt about the validity of A.TR.1 movement
of goods certificates issued by the Turkish customs authorities to make use of the
procedure for settling disputes laid down in Article 25 of that agreement before declaring
those certificates invalid. That conclusion is borne out by the fact that the agreement
does not provide for the possibility of a contracting party declaring invalid the
certificates issued by the customs authorities of the other contracting party. Furthermore,
such a manner of proceeding seems difficult to reconcile with the division of
responsibility between the customs authorities of the parties to the agreement and the
principle that the customs administration of the importing State accepts the
determinations legally made by the authorities of the exporting State. (see para. 270)
11. The existence of tensions between the Community and a third country does not
exonerate the Commission as guardian of the Treaty and of the agreements concluded
under it from ensuring the correct implementation by that country of the obligations it
has contracted to fulfil under an agreement concluded with the Community, using the
means provided for by the agreement or by the decisions taken pursuant thereto. If, as a
result of such tensions, it is unable to meet that obligation, inter alia because the means
at its disposal prove to be inoperative or ineffective, it is incumbent upon it, at the very
least, to inform the Member States as soon as possible of the measures to be taken to
prevent damage to the Community and Community traders. In no case can the
Commission use its exclusive authority as regards the recovery and remission of import
duties to remedy failures in the implementation of an agreement concluded between the
Community and a third country. (see paras 271-272)
12. In order to determine whether an error made by the competent authorities could not
reasonably have been detected by the person liable within the meaning of Article 5(2) of
Regulation No 1697/79 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, account has to be taken
inter alia of the precise nature of the error, the professional experience of and the care
taken by the trader concerned. That assessment must be made in the light of the
particular circumstances of the case. The nature of the error should be assessed inter
alia in the light of the amount of time during which the competent authorities persisted in
their error and the complexity of the provisions at issue. (see paras 279, 282)
13. Article 13 of Regulation No 1430/79 provides that import duties may be repaid or
remitted in situations which result from circumstances in which no deception or obvious
negligence may be attributed to the person concerned. It is for the Commission to prove
obvious negligence in a situation where it is clear that the manner in which the
applicants entered into purchase contracts and carried out the imports at issue is in
conformity with standard trade practice.
(see para. 297)
_______________________________________________________________________
C-181/97 – 28/1/99 – A.J. van der Kooy v Staatssecretaris van Financiën (European
Court reports 1999 Page I-00483)
Part Four of the EC Treaty - Article 227 of the EC Treaty - Article 7(1)(a) of Sixth
Directive 77/388/EEC - Goods in free circulation in overseas countries and territories
It follows from the provisions of Articles 3 and 7, read together, of the Sixth Directive
(77/388) on the harmonisation of the laws of the Member States relating to turnover taxes
that the terms `Community' and `territory of the Community' relate to the area of
application of the Treaty as defined for each Member State in Article 227 of the Treaty.
In accordance with Article 227(3), the special arrangements for association set out in
Part Four of the Treaty apply to the overseas countries and territories (OCTs), including
the Netherlands Antilles. Under those arrangements, failing express reference, the
general provisions of the Treaty do not apply to the OCTs. Consequently, the entry into a
Member State of goods coming from the Netherlands Antilles cannot be categorised as an
intra-Community transaction for the purposes of the Sixth Directive, unless a special
provision so prescribes. There is no provision to that effect in the Sixth Directive or in
Part Four of the Treaty or in Decision 91/482 on the association of the overseas
countries and territories with the European Economic Community. The entry into a
Member State of goods coming from the Netherlands Antilles must therefore be regarded
as entry into the Community for the purposes of applying Article 7(1) of the Sixth
Directive.
_______________________________________________________________________
C-86/97 – 25/2/99 – Reiner Woltmann v Hauptzollamt Potsdam (European Court
reports 1999 Page I-01041)
Factors `which might constitute a special situation resulting from circumstances in which
no deception or obvious negligence may be attributed to the person concerned', within
the meaning of Article 905(1) of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code
exist, necessitating examination of the file by the Commission, where, having regard to
the objective of fairness underlying Article 239 of Regulation No 2913/92, factors liable
to place the applicant in an exceptional situation as compared with other operators
engaged in the same business are found to exist and the conditions laid down in Article
900(1)(a) of Regulation No 2454/93, for remission of customs duties in favour of an
applicant, are not fulfilled.
_______________________________________________________________________
T-10/97 and T-11/97 – 9/6/98 – Unifrigo Gadus Srl and CPL Imperial 2 SpA v
Commission of the European Communities (European Court reports 1998 Page II-02231)
(see Judgment in Appeal C-299/98 P)
Procedural rules are generally held to apply to all proceedings pending at the time when
they enter into force, whereas substantive rules are usually interpreted as not applying to
situations existing before their entry into force.
Articles 871 and 873 of Regulation No 2454/93 laying down provisions for the
implementation of Regulation No 2913/92 establishing the Community Customs Code
confer on the Commission a decision-making power, in particular where the competent
authorities consider that the criteria for waiving post-clearance recovery of customs
duties are fulfilled. That decision-making power is designed to ensure the uniform
application of Community law. The machinery for referring cases to the Commission
would be rendered pointless if the Commission were required to adhere to the views
expressed by the customs authorities in the request submitted to it by them. None the less,
that decision-making power in no way permits the Commission to disregard the right of
the person liable to waiver of the post-clearance recovery of customs duties where,
having completed its examination of the matter, it concludes that the criteria entitling the
undertaking to the benefit of that waiver of recovery are fulfilled.
Consequently, where the Commission is called upon to determine whether the customs
authorities of a Member State are required to carry out post-clearance recovery of
import duties, it is entitled to conclude that the file submitted to it is complete and that
there is no need for it to seek additional information before making its decision if the
authorities of the exporting State have informed the authorities of the importing State that
the exporter is unable to prove that the goods in question originated from the territory of
the exporting State and neither the authorities of the importing State nor the importers
have contested the conclusion that those goods are of unknown origin.
In accordance with the very wording of Article 5(2) of Regulation No 1697/79 on the
post-clearance recovery of import duties or export duties, the legitimate expectations of
the person liable warrant the protection provided for in that article only if it was the
competent authorities `themselves' which created the basis for those expectations. Thus,
only errors attributable to acts of the competent authorities confer entitlement to the
waiver of post-clearance recovery of customs duties. That condition cannot be regarded
as fulfilled where the competent authorities have been misled - in particular as to the
origin of the goods - by incorrect declarations on the part of the exporter whose validity
they do not have to check or assess. Moreover, the person liable cannot entertain a
legitimate expectation with regard to the validity of EUR.1 certificates by virtue of the
fact that they were initially accepted by the customs authorities of a Member State, since
the role of those authorities in regard to the initial acceptance of declarations in no way
prevents subsequent checks from being carried out.
_______________________________________________________________________
C-413/96 – 24/9/98 – Skatteministeriet v Sportgoods A/S (European Court reports 1998
Page I-05285)
Inward processing relief arrangements - Special arrangements for milk sector products
-Extension of the time-limit for export
The aim of binding tariff information is to enable the trader to proceed with certainty
where there are doubts as to the classification of goods in the existing customs
nomenclature, thereby protecting him against any subsequent change in the position
adopted by the customs authorities with regard to the classification of the goods.
However, as is confirmed clearly and precisely by the wording of the first indent of the
first paragraph of Article 13 of Regulation No 1715/90 on the information provided by
the customs authorities of the Member States concerning the classification of goods in the
customs nomenclature, such information is not aimed at, nor can it have the effect of,
guaranteeing that the tariff heading to which the trader refers will not subsequently be
amended by a measure adopted by the Community legislature.
Accordingly, in so far as that article provides that binding tariff information ceases to be
valid where, as a result of the adoption of a regulation amending the customs
nomenclature, it no longer conforms to Community law as thus established, not only is it
in keeping with the requirements inherent in the principle of legal certainty, but it also
precludes the trader from being able to entertain, on the sole basis of binding tariff
information, a legitimate expectation that the tariff heading in question will not be
amended by a measure adopted by the Community legislature.
Moreover, that provision does not prevent the principles of the protection of legitimate
expectations and legal certainty from imposing on the Community legislature, when the
customs nomenclature is amended, the obligation to protect by means of appropriate
measures traders who would otherwise sustain unforeseeable and irreparable damage,
whether or not they are the addressees of binding tariff information.
_______________________________________________________________________
C-292/96 – 15/1/98 – Göritz Intransco International GmbH v Hauptzollamt Düsseldorf
(European Court reports 1998 Page I-00165)
Refund for use of sugar in the manufacture of certain chemical products - Anti-asthenia
products - Tariff classification
A product presented in the form of chewable tablets, effervescent tablets, and a drinkable
solution in ampoules, their active ingredients being in principle identical, a drinkable 5
ml ampoule containing 1 g of arginine-aspartate as the single active ingredient,
excipients and sodium, and a product presented in the form of a powder to make a
drinkable solution, contained in sachets, and a drinkable solution in the form of
ampoules, containing 3 g of arginine-glutamate (the active ingredient of the product, with
the same therapeutic effects as arginine-aspartate), the second product having
practically the same composition as the first product and identical therapeutic
indications, cannot be classified under heading 3004 of the Combined Nomenclature, and
consequently do not come within the scope of Regulation No 1010/86 laying down
general rules for the production refund on certain sugar products used in the chemical
industry, when it has not been established that the products had clearly defined
therapeutic or prophylactic characteristics with an effect concentrated on precise
functions of the human organism or that they were capable of being applied in the
prevention or treatment of specific diseases or ailments.
Nor, for identical reasons, can a product marketed in a drinkable solution put up in 5 or
10 ml ampoules, one 5 ml ampoule containing 15 ìg of vitamin B 12 and a 10 ml ampoule
double that quantity and in addition amino acids and preservatives, or a product
presented in the form of drinkable ampoules for adults of 5 or 10 ml, its composition
including 500 ìg of vitamin B 12 per ampoule of 10 ml and 250 ìg of vitamin B 12 per
ampoule of 5 ml and also containing amino acids and preservatives, be classified under
heading 3004 and consequently those products do not come within the scope of
Regulation No 1010/86.
Neither the fact that, pursuant to the provisions of Directive 65/65 on medicinal products,
marketing authorisations were granted for those products as `medicinal products' by the
competent national authorities, nor the fact that those products are regarded as such
under that State's legislation, nor the presentation of the products is a deciding factor in
so far as the classification of such products is concerned.
_______________________________________________________________________
C-261/96 – 6/11/97 – Conserchimica Srl v Amministrazione delle Finanze dello Stato
(European Court reports 1997 Page I-06177)
Free movement of goods - Community transit -Means of proof of the Community status
of goods
The rule laid down in Regulation No 222/77 on Community transit and Regulation No
223/77 on provisions for the implementation of the Community transit procedure and for
certain simplifications of that procedure to the effect that, save as otherwise provided,
proof of the Community status of goods may be provided only by means of transit
documents T2 or T2 L is consistent with Articles 9 and 10 of the Treaty.
In the first place, Articles 9 and 10 are silent as to the means of proof and the burden of
proof of the Community status of goods and leave it to secondary Community legislation
to settle those matters, while, second, the provision of a standard and simple means of
proof, combined with the possibility of producing such proof even after the frontier has
been crossed, is justified by the need to facilitate the movement of goods within the
Community, which is one of the basic principles of the common market.
Article 37(2) of Regulation No 222/77 does not allow proof of the Community status of
goods to be provided by means of the findings of the competent authorities of a Member
State made when inspections are carried out under the Community transit procedure.
That provision cannot constitute a derogation from the rule that, save as otherwise
provided, proof of the Community status of goods may be provided only by means of
transit documents T2 or T2 L. Admission of the findings referred to in Article 37(2) as
proof would lead to reintroduction of the simultaneous application of national
administrative procedures which the rules governing Community transit are designed
precisely to avoid.
_______________________________________________________________________
C-228/96 – 17/11/98 – Aprile Srl, in liquidation, v Amministrazione delle Finanze dello
Stato (European Court reports 1998 Page I-07141)
Charges having equivalent effect - Recovery of sums paid but not due - Procedural time-
limits under national law
In the absence of Community rules on the refunding of national charges levied though not
due, it is for the domestic legal system of each Member State to designate the courts and
tribunals having jurisdiction and to lay down the detailed procedural rules governing
actions for safeguarding rights which individuals derive from Community law, provided,
first, that such rules are not less favourable than those governing similar domestic
actions (principle of equivalence) and, second, that they do not render virtually
impossible or excessively difficult the exercise of rights conferred by Community law
(principle of effectiveness).
Observance of the principle of equivalence implies, for its part, that the procedural rule
at issue applies without distinction to actions alleging infringements of Community law
and to those alleging infringements of national law, with respect to the same kind of
charges or dues. That principle cannot, however, be interpreted as obliging a Member
State to extend its most favourable rules governing recovery under national law to all
actions for repayment of charges or dues levied in breach of Community law. Thus,
Community law does not preclude the legislation of a Member State from laying down,
alongside a limitation period applicable under the ordinary law to actions between
private individuals for the recovery of sums paid but not due, special detailed rules,
which are less favourable, governing claims and legal proceedings to challenge the
imposition of charges and other levies. The position would be different only if those
detailed rules applied solely to actions based on Community law for the repayment of
such charges or levies.
It follows that Community law does not preclude the application of a national provision
which, for all actions for repayment of customs charges, imposes a special time-limit of
five, and subsequently three, years, instead of the ordinary limitation period of 10 years
for actions for the recovery of sums paid but not due, provided that that time-limit, which
is similar to that imposed for certain taxes, applies in the same way to actions based on
Community law for repayment of such charges as to those based on national law.
Community law does not prohibit a Member State from resisting actions for repayment of
charges levied in breach of Community law by relying on a time-limit under national law
even if that Member State has not yet amended its national rules in order to render them
compatible with those provisions, provided, first, that that time-limit is not less
favourable for actions based on Community law than for those based on domestic law
and that it does not render virtually impossible or excessively difficult the exercise of
rights conferred by Community law and, second, provided that it is not established that
the conduct of the national authorities, in conjunction with the existence of the contested
time-limit, had the effect of depriving the plaintiff of any opportunity of enforcing his
rights before the national courts.
_______________________________________________________________________
C-213/96 – 2/4/98 – Outokumpu Oy (European Court reports 1998 Page I-01777)
Excise duty on electricity - Rates of duty varying according to the method of producing
electricity of domestic origin - Flat rate for imported electricity
An excise duty which is charged on electricity of domestic origin at rates which vary
according to its method of production, while being levied on imported electricity at a flat
rate which is higher than the lowest rate but lower than the highest rate applicable to
electricity of domestic origin, constitutes internal taxation within the meaning of Article
95 of the Treaty, not a charge having equivalent effect to a customs duty within the
meaning of Articles 9 and 12, where it forms part of a general system of taxation which is
levied not only on electrical energy as such but also on several primary energy sources,
and where both imported electricity and electricity of domestic origin form part of the
same tax system and the duty is levied by the same authorities under the same
procedures, whatever the origin of the electricity.
The fact that imported electricity is taxed at the moment of import and electricity of
domestic origin at the moment of production makes no difference for the classification of
such a duty, since in view of the characteristics of electricity those two moments
correspond to the same marketing stage, namely that when the electricity enters the
national distribution network.
Community law does not, at its present stage of development, restrict the freedom of each
Member State to establish a tax system which differentiates between certain products,
even products which are similar within the meaning of the first paragraph of Article 95 of
the Treaty, on the basis of objective criteria, such as the nature of the raw materials used
or the production processes employed. Such differentiation is compatible with
Community law, however, only if it pursues objectives which are themselves compatible
with the requirements of the Treaty and its secondary legislation, and if the detailed rules
are such as to avoid any form of discrimination, direct or indirect, against imports from
other Member States or any form of protection of competing domestic products. Article 95
of the Treaty therefore does not preclude the rate of an internal duty on electricity from
varying according to the manner in which the electricity is produced and the raw
materials used, in so far as that differentiation is based on environmental considerations.
Protection of the environment constitutes one of the essential objectives of the
Community. The Community's task includes the promotion of sustainable and
non-inflationary growth respecting the environment and its activities include a policy in
the sphere of the environment. Furthermore, compatibility with the environment of
methods of producing electrical energy is an important objective of the Community's
energy policy.
The first paragraph of Article 95 of the Treaty precludes an excise duty which forms part
of a national system of taxation on sources of energy from being levied on electricity of
domestic origin at rates which vary according to its method of production while being
levied on imported electricity, whatever its method of production, at a flat rate which,
although lower than the highest rate applicable to electricity of domestic origin, leads, if
only in certain cases, to higher taxation being imposed on imported electricity.
Article 95 of the Treaty is infringed by a system of internal taxation where the taxation on
the imported product and that on the similar domestic product are calculated in a
different manner on the basis of different criteria which lead, if only in certain cases, to
higher taxation being imposed on the imported product.
The fact that, because of the characteristics of electricity, it may prove extremely difficult
to determine precisely the method of production of imported electricity and hence the
primary energy sources used for its production cannot justify such a system of taxation,
since practical difficulties cannot justify the application of internal taxation which
discriminates against products from other Member States. Although in principle Article
95 of the Treaty does not require Member States to abolish objectively justified
differences which national legislation establishes between internal taxes on domestic
products, it is otherwise where such abolition is the only way of avoiding direct or
indirect discrimination against the imported products.
_______________________________________________________________________
C-212/96 – 19/2/98 – Paul Chevassus-Marche v Conseil régional de la Réunion
(European Court reports 1998 Page I-00743)
Dock dues (octroi de mer) - Fiscal rules applicable to the French overseas departments
-Decision 89/688/EEC - Charges having an effect equivalent to a customs duty - Internal
taxation
Refund for use of sugar in the manufacture of certain chemical products - Multivitamin
products and products containing amino acids - Tariff classification
The jurisdiction of the Court of Justice to give preliminary rulings under Article 177 of
the Treaty concerning the validity of acts of the Community institutions cannot be limited
by the grounds on which the validity of those measures may be contested. Since such
jurisdiction extends to all grounds capable of invalidating those measures, the Court is
obliged to examine whether their validity may be affected by reason of the fact that they
are contrary to a rule of international law.
A provision of an agreement concluded by the Community with non-member countries
must be regarded as being directly applicable when, regard being had to its wording and
the purpose and nature of the agreement itself, the provision contains a clear and precise
obligation which is not subject, in its implementation or effects, to the adoption of any
subsequent measure.
Such is the case with Article 22(4) of the Cooperation Agreement between the EEC and
the Socialist Federal Republic of Yugoslavia, which, as amended by Article 4 of the
Additional Protocol to that agreement, lays down in respect of certain wines a
Community tariff quota within which dismantling of customs duties on importation into
the Community is to take place.
When invoking in legal proceedings the preferential customs treatment granted to him by
Article 22(4) of the Cooperation Agreement between the EEC and the Socialist Federal
Republic of Yugoslavia, an individual may challenge the validity under customary
international law rules of a regulation suspending the trade concessions granted under
that Agreement.
An agreement concluded by the Council with a non-member country in accordance with
the provisions of the EC Treaty is, as far as the Community is concerned, an act of a
Community institution, and the provisions of such an agreement form an integral part of
Community law. If, therefore, a Community regulation suspending the application of a
cooperation agreement were to be declared invalid by reason of its being contrary to
rules of customary international law, the trade concessions granted by the provisions of
that agreement would remain applicable in Community law until the Community brought
that agreement to an end in accordance with the relevant rules of international law.
Moreover, the European Community must respect international law in the exercise of its
powers. It is therefore required to comply with the rules of customary international law
when adopting a regulation suspending the trade concessions granted by, or by virtue of,
an agreement which it has concluded with a non-member country. It follows that the
rules of customary international law concerning the termination and the suspension of
treaty relations by reason of a fundamental change of circumstances are binding upon
the Community institutions and form part of the Community legal order.
Where an individual is incidentally challenging the validity of a Community regulation
under rules of customary international law concerning the termination and the
suspension of treaty relations by reason of a fundamental change of circumstances in
order to rely upon rights which he derives directly from an agreement of the Community
with a non-member country, the case in question does not concern the direct effect of
those rules.
Moreover, those rules form an exception to the pacta sunt servanda principle, which
constitutes a fundamental principle of any legal order and, in particular, the
international legal order. Applied to international law, that principle requires that every
treaty be binding upon the parties to it and be performed by them in good faith. In those
circumstances, an individual relying in legal proceedings on rights which he derives
directly from an agreement with a non-member country may not be denied the possibility
of challenging the validity of a regulation which, by suspending the trade concessions
granted by that agreement, prevents him from relying on it, and of invoking, in order to
challenge the validity of the suspending regulation, obligations deriving from rules of
customary international law which govern the termination and suspension of treaty
relations.
However, because of the complexity of those rules and the imprecision of some of the
concepts to which they refer, judicial review must necessarily, and in particular in the
context of a preliminary reference for an assessment of validity, be limited to the question
whether, by adopting the suspending regulation, the Council made manifest errors of
assessment concerning the conditions for applying those rules.
_______________________________________________________________________
C-143/96 – 9/12/97 – Leonhard Knubben Speditions GmbH v Hauptzollamt Mannheim
(European Court reports 1997 Page I-07039)
Common Customs Tariff - 'Crushed' peppers within the meaning of subheading 0904 20
90 of the Combined Nomenclature
Outward processing relief - Total or partial relief from import duties - Determination of
value of compensating products and temporary export goods - Reasonable means of
determining value
The reasonable means of determining outward processing costs for the purposes of the
second method set out in Article 13(2) of Regulation No 2473/86 on outward processing
relief arrangements and the standard exchange system, implies the use of means
appropriate to the circumstances of each case and can entail taking account of the
transaction value of the temporary export goods, which comprises the purchase price and
any uplifts, even if the rate of duty is higher for the unprocessed goods than for the
compensating products. The possibility of tariff anomalies arising, and resulting in
customs advantages for the traders concerned, is a risk inherent in the arrangements
introduced by the regulation on outward processing, the primary aim of which is to
prevent customs duties from being charged on goods exported from the European
Community for processing in respect of which Article 1 permits total relief from import
duties in certain circumstances.
_______________________________________________________________________
C-105/96 – 17/6/97 – Codiesel - Sociedade de Apoio Técnico à Indústria Ldª v Conselho
Técnico Aduaneiro (European Court reports 1997 Page I-03465)
The increase provided for in Article 1(3) of Regulation No 738/92 imposing a definitive
anti-dumping duty on imports of cotton yarn originating in Brazil and Turkey must be
applied whenever it is agreed that imported goods are to be paid for more than 30 days
after their arrival in the customs territory of the Community, even where the difference
between the price for deferred payment and that for immediate payment is greater, in
percentage terms, than the increase to be applied.
That increase is intended to offset, automatically and at a standard rate, the commercial
advantage which can result from deferred payment terms for goods, in order to prevent a
form of credit dumping.
Such an increase must be applied to the price actually paid or payable for the goods
when they are sold for export to the customs territory of the Community, excluding
charges for interest as consideration for the deferred payment terms granted, provided
that those terms are the subject of a `financing arrangement' within the meaning of
Article 3(2) of Regulation No 1495/80, and that the level of charges reflects prevailing
interest rates.
The free-at-Community-frontier price, to which the anti-dumping duty is applied,
corresponds to the customs value of the imported goods, as defined by Article 3(1) of
Regulation No 1224/80 on the valuation of goods for customs purposes, namely the price
actually paid or payable for the goods when sold for export to the customs territory of the
Community.
Under Article 3(2) of Regulation No 1495/80 implementing certain provisions of Articles
1, 3 and 8 of Regulation No 1224/80, charges for interest due under a financing
arrangement entered into by the buyer and relating to the purchase of imported goods
are not to be included in the customs value determined in that way, provided that those
charges are distinguished from the price actually paid or payable for the goods, that the
financing arrangement has been made in writing and that the buyer can demonstrate not
only that such goods are actually sold at the price declared as the price actually paid or
payable, but also that the claimed rate of interest does not exceed the level for such
transactions prevailing in the country where, and at the time when, the finance was
provided.
_______________________________________________________________________
C-80/96 – 15/1/98 – Quelle Schickedanz AG und Co. v Oberfinanzdirektion Frankfurt
am Main (European Court reports 1998 Page I-00123)
1. Respect for the rights of the defence in all proceedings which are initiated against a
person and are liable to culminate in a measure adversely affecting that person is a
fundamental principle of Community law which must be guaranteed, even in the absence
of any rules governing the procedure in question. In view of the discretion enjoyed by the
Commission in adopting a decision pursuant to the general equitable provision contained
in Article 13 of Regulation No 1430/79 on the repayment or remission of import or export
duties, it is all the more important that respect for the right to be heard be guaranteed in
procedures initiated pursuant to that regulation. That principle requires, in that context,
not only that the person concerned should be placed in a position in which he may
effectively make known his views on the relevant circumstances, but also that he should
at least be able to put his own case on the documents taken into account by the
Commission or even, when the latter is accused of having committed serious breaches of
its obligations, that he should have access to all non-confidential official documents
concerning the decision in question.
More specifically, when the Commission contemplates diverging from the position taken
by the competent national authorities on whether the person concerned was guilty of
obvious negligence, within the meaning of Article 13, it has a duty to arrange for that
person to be heard, since such a decision involves a complex legal appraisal which can
be effected only on the basis of all the relevant facts.
2. Article 13 of Regulation No 1430/79, which provides that import duties may be repaid
or remitted in special situations which result from circumstances in which no deception
or obvious negligence may be attributed to the person concerned, constitutes a general
equitable provision designed to cover situations other than those which arose most often
in practice and for which special provision could be made when Regulation No 1430/79
was adopted. It is intended to apply, inter alia, where the circumstances characterising
the relationship between a trader and the administration are such that it would be
inequitable to require the trader to bear a loss which it normally would not have
incurred.
The Commission must assess all the facts in order to determine whether they constitute a
special situation within the meaning of that provision. Although it enjoys a measure of
discretion in that respect, it is required to exercise that power by actually balancing, on
the one hand, the Community interest in ensuring that the customs provisions are
respected and, on the other, the interest of the importer acting in good faith not to suffer
harm beyond normal commercial risk. Consequently, when examining whether an
application for remission is justified, the Commission cannot simply take account of the
conduct of importers but must also assess the impact of its own conduct - and possible
fault - on the resulting situation.
Therefore, although the presentation, for the purpose of obtaining preferential tariff
treatment of goods declared for free circulation, of documents subsequently found to be
falsified does not in itself constitute a special situation justifying remission of import
duties even where such documents were presented in good faith, that does not preclude
such remission when, by failing effectively to monitor use of a tariff quota exempt from
import duties, the Commission committed a serious breach of its duty to ensure that the
quota was properly applied and was not exceeded by means of falsified certificates. 3.
Article 13 of Regulation No 1430/79 provides that the competent authorities may repay or
remit import duties in special situations which result from circumstances in which no
deception or obvious negligence may be attributed to the person concerned. Provided
that those two conditions are satisfied, the person liable is entitled to reimbursement or
remission of the duties, since to hold otherwise would deprive that provision of its
effectiveness.
It follows that remission of import duties cannot be conditional upon satisfaction of the
three cumulative conditions laid down in Article 5(2) of Regulation No 1697/79 on the
post-clearance recovery of the duties in question, namely that the duties must not have
been collected as a result of an error made by the competent authorities, that the person
liable must have acted in good faith - that is to say, he could not reasonably have
detected the error made by the competent authorities - and that he must have complied
with all the provisions laid down by the rules in force so far as his customs declaration is
concerned. Although the two provisions referred to above pursue the same aim, namely
to limit the post-clearance payment of import or export duties to cases where such
payment is justified and is compatible with a fundamental principle such as the
protection of legitimate expectations, they can none the less not be equated. Whilst
Article 5(2) of Regulation No 1697/79 is intended to protect the legitimate expectation of
the person liable that the decision whether or not to proceed with recovery of customs
duties is based on considerations which are completely sound, Article 13 of Regulation
No 1430/79 constitutes a general equitable provision and would cease to be such if the
conditions laid down in Article 5(2) had to be satisfied in every case.
_______________________________________________________________________
T-42/96 – 19/2/98 – Eyckeler & Malt AG v Commission of the European Communities
(European Court reports 1998 Page II-00401)
1. Although procedural rules are generally held to apply to all proceedings pending at
the time when they enter into force, this is not the case with substantive rules. On the
contrary, the latter are usually interpreted as applying to situations existing before their
entry into force only in so far as it clearly follows from their terms, objectives or general
scheme that such an effect must be given to them.
That is not true of the rule relating to the remission of import duties contained in Article
239 of Regulation No 2913/92 establishing the Community Customs Code which
replaced, with effect from 1 January 1994, the rules set out in Article 13 of Regulation No
1430/79 on the repayment or remission of import or export duties, meaning that an
application for remission of duties must be examined in the light of the latter provision in
the event that it was in force at the time when the importations of the goods at issue were
made and the entry of the goods for free circulation accepted.
2. Respect for the rights of the defence in all proceedings which are initiated against a
person and are liable to culminate in a measure adversely affecting that person is a
fundamental principle of Community law which must be guaranteed, even in the absence
of any rules governing the procedure in question. In view of the margin of assessment
enjoyed by the Commission in adopting a decision pursuant to the general equitable
provision contained in Article 13 of Regulation No 1430/79 on the repayment or
remission of import or export duties, it is all the more important that respect for the right
to be heard is guaranteed in procedures initiated pursuant to that regulation. That
principle requires, in that context, not only that the person concerned should be placed in
a position in which he may effectively make known his views on the relevant
circumstances, but also that he should at least be able to put his own case on the
documents taken into account by the Commission or even, when the latter is accused of
having committed serious breaches of its obligations, that he should have access to all
non-confidential official documents concerning the decision in question. More
specifically, when the Commission contemplates diverging from the position taken by the
competent national authorities on whether the person concerned was guilty of obvious
negligence, within the meaning of Article 13, it has a duty to arrange for that person to
be heard, since such a decision involves a complex legal appraisal which can be effected
only on the basis of all the relevant facts.
3. Article 13 of Regulation No 1430/79, which provides that import duties may be repaid
or remitted in special situations which result from circumstances in which no deception
or obvious negligence may be attributed to the person concerned, constitutes a general
equitable provision designed to cover situations other than those which arose most often
in practice and for which special provision could be made when Regulation No 1430/79
was adopted. It is intended to apply, inter alia, where the circumstances characterising
the relationship between a trader and the administration are such that it would be
inequitable to require the trader to bear a loss which it normally would not have
incurred.
The Commission must assess all the facts in order to determine whether they constitute a
special situation within the meaning of that provision. Although it enjoys a margin of
assessment in that respect, it is required to exercise that power by actually balancing, on
the one hand, the Community interest in ensuring that the customs provisions are
respected and, on the other, the interest of the importer acting in good faith not to suffer
harm beyond normal commercial risk. Consequently, when examining whether an
application for remission is justified, the Commission cannot simply take account of the
conduct of importers but must also assess the impact of its own conduct on the resulting
situation even if it is at fault.
Therefore, although it is true that the presentation, for the purpose of obtaining
preferential tariff treatment of goods declared for free circulation, of documents
subsequently found to be falsified does not in itself constitute a special situation justifying
remission of import duties even where such documents were presented in good faith, that
rule does not preclude such remission when, by failing effectively to monitor use of a
tariff quota exempt from import duties, the Commission committed a serious breach of its
duty to ensure that the quota was properly applied and was not exceeded by means of
falsified certificates.
4. Article 13 of Regulation No 1430/79 provides that the competent authorities may repay
or remit import duties in special situations which result from circumstances in which no
deception or obvious negligence may be attributed to the person concerned. Provided
that those two conditions are satisfied, the person liable is entitled to reimbursement or
remission of the duties, since to hold otherwise would deprive that provision of its
effectiveness.
It follows that remission of import duties cannot be conditional upon the three cumulative
conditions laid down in Article 5(2) of Regulation No 1697/79 on the post-clearance
recovery of the duties in question being satisfied, namely that the duties must not have
been collected as a result of an error made by the competent authorities, that the person
liable must have acted in good faith - that is to say, he could not reasonably have
detected the error made by the competent authorities - and that he must have observed all
the provisions laid down by the rules in force as far as his customs declaration is
concerned. Although the two provisions referred to above pursue the same aim, namely
to limit the post-clearance payment of import or export duties to cases where such
payment is justified and is compatible with a fundamental principle such as the
protection of legitimate expectations, they can none the less not be equated. Whilst
Article 5(2) of Regulation No 1697/79 is intended to protect the legitimate expectation of
the person liable that all the information and criteria on which the decision whether or
not to proceed with recovery of customs duties is based are correct, Article 13 of
Regulation No 1430/79 constitutes a general equitable provision and would cease to be
such if the conditions laid down in Article 5(2) had to be satisfied in every case.
_______________________________________________________________________
C-37/96 and C-38/96 – 30/4/98 – Sodiprem SARL and Others (C-37/96) and Roger
Albert SA (C-38/96) v Direction générale des douanes (European Court reports 1998
Page I-02039)
Dock dues (octroi de mer) - Fiscal rules applicable to the French overseas departments
-Decision 89/688/EEC - Charges having an effect equivalent to a customs duty - Internal
taxation
Within the framework of proceedings brought under Article 177 of the Treaty, the Court
does not have jurisdiction to give a ruling on the compatibility of a national measure with
Community law. However, it does have jurisdiction to supply the national court with a
ruling on the interpretation of Community law so as to enable that court to determine
whether such compatibility exists in order to decide the case before it. On a proper
construction, Decision 89/688 concerning the dock dues (octroi de mer) in the French
overseas departments precludes exemptions of a general or systematic order, which would
thus amount to the reintroduction of a charge having an effect equivalent to that of a
customs duty. That decision does, however, authorise exemptions which are necessary,
proportionate and precisely determined and which respect the strict conditions laid down
in Article 2(3) thereof, interpreted in the light of the limits laid down in Article 226 of the
Treaty.
Those conditions include, first of all, the general rule, stated in Articles 1 and 2 of the
decision, that octroi de mer is to apply in principle to all products whether imported into
or produced in the French overseas departments. Next, the system of exemptions
constitutes an exception to that general rule. It must disturb the common market as little
as possible and may thus not adversely affect the terms of trade to an extent contrary to
the common interest. Monitoring of those conditions is the responsibility of the
Community institutions, in particular the Commission, which must assess the extent to
which such measures are necessary and proportionate. Finally, that system is a measure
of support for local production faced with difficulties as a result of isolation and distance
from metropolitan France, its aim being to promote the economic and social development
of the French overseas departments in that it must contribute to the promotion or
maintenance of an economic activity in those departments and be in line with an
economic and social development strategy.
_______________________________________________________________________
C-28/96 – 17/9/97 – Fazenda Pública v Fricarnes SA (European Court reports 1997
Page I-04939)
National charges on the marketing of meat - Charge having equivalent effect - Internal
taxation - Turnover tax
A charge on the marketing of meat levied without distinction on domestic and imported
products constitutes a charge having an effect equivalent to a customs duty, prohibited by
Articles 9 and 12 of the Treaty, if the revenue from it is intended to finance activities
benefiting only the taxed domestic products and if the resultant advantages fully offset the
burden which the latter products bear; if those advantages only partly offset the burden
borne by the domestic products, the charge constitutes discriminatory internal taxation
prohibited by Article 95 of the Treaty and must be reduced proportionally.
If the activities financed by the charge benefit domestic products and taxed imported
products but the former obtain a proportionally greater advantage from them, the charge
constitutes, to that extent, a charge having an effect equivalent to a customs duty or
discriminatory internal taxation, depending on whether the advantage accruing to the
taxed domestic products fully or only partly offsets the burden which they bear.
It follows that, with a view to determining how the charges on the marketing of meat and
offal, the charge in respect of ruminants and the charge for measures to combat swine
fever are to be characterized in law, it is incumbent on the national court to consider:
- whether the revenue from the charge specifically intended to be used to combat diseases
of livestock reared on national territory benefits exclusively animals of national origin
or, at least, benefits them proportionally more than imported animals;
- whether the revenue from all the charges at issue is used for stabilization only of trade
with the other Member States in the products which bear the charges;
Since the aim pursued by Article 33 of the Sixth Directive (77/388) on the harmonization
of the laws of the Member States relating to turnover taxes is to preclude the introduction
of taxes, duties and charges which, because they are levied on the movement of goods
and services in a way comparable to value added tax, would compromise the functioning
of the common system of value added tax, that provision does not preclude the levying of
a charge which is applied only to certain products, is not proportional to the price of
those products, is not charged at each stage of the production and distribution process
and is not imposed on the added value of the goods. Since it displays none of the
characteristics of value added tax, such a charge does not apply to the movement of
goods and services in a manner comparable to value added tax.
_______________________________________________________________________
C-405/95 – 15/5/97 – Bioforce GmbH v Oberfinanzdirektion München (European Court
reports 1997 Page I-02581)
1. It follows from Article 49 of the Statute of the Court of Justice that interveners before
the Court of First Instance are regarded as parties before that court. Consequently, if an
appeal is brought against that court's judgment, Article 115(1) of the Rules of Procedure
of the Court of Justice applies to them, so that they are dispensed from having to make a
fresh application to intervene before the Court of Justice under Articles 93 and 123 of the
Rules of Procedure.
Since no distinction is made, as regards the pleas they may raise in an appeal, between
the parties who are entitled to lodge a response, an intervener who is so entitled must be
able to raise pleas relating to any point of law on which the contested judgment is based.
Such a party may therefore plead before the Court of Justice that the application was
inadmissible, despite the fact that the party it supported before the Court of First
Instance, which raised that plea at first instance, has not repeated it in its response to the
appeal.
2. The judicial protection which an individual enjoys under the fourth paragraph of
Article 173 of the Treaty cannot depend on whether the contested decision is addressed to
one Member State or to several, but must be established on the basis of the specific
situation of that individual compared to all other persons concerned. More particularly,
in the case of a decision introducing a safeguard measure, what matters for identifying
the persons individually concerned by that decision is the protection enjoyed under
Community law by the country or territory, and by the undertakings concerned, against
which the safeguard measure is adopted.
3. The Court of First Instance 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 the context of an appeal.
4. The adoption by the Community of a safeguard clause authorising restrictions on the
freedom to import agricultural products originating in the overseas countries and
territories (OCTs) is not excluded in the context of the second paragraph of Article 136
of the Treaty.
First, although the OCTs are associated countries and territories which have special
links with the Community, they do not form part of the Community, and free movement of
goods between the OCTs and the Community does not exist unrestrictedly at this stage, in
accordance with Article 132 of the Treaty.
Second, when the Council adopts decisions concerning the OCTs under the second
paragraph of Article 136, which authorises it to adopt decisions concerning the
association on the basis of the principles set out in the Treaty, it must take account not
only of the principles in Part Four of the Treaty on the OCTs but also of the other
principles of Community law, including those relating to the common agricultural policy.
Moreover, the promotion by the Community of the economic and social development of
the OCTs, which is provided for by Article 3(r) and Article 131 of the Treaty, does not
imply an obligation to give them privileged treatment, and the abolition of customs duties
on entry into the Community of products originating in the OCTs, provided for by Article
133(1) of the Treaty, does not exclude the possibility of adopting, on the basis of the
second paragraph of Article 136, a safeguard clause which limits imports only
exceptionally, partially and temporarily.
5. The Commission has a wide discretion in the application of Article 109 of Decision
91/482 on the association of the overseas countries and territories, which empowers it to
take or authorise safeguard measures where certain conditions are met. In cases
involving such a discretion, the Court of First Instance must restrict itself to considering
whether the exercise of that discretion contains a manifest error or constitutes a misuse
of power or whether the Commission clearly exceeded the bounds of its discretion.
6. The objective of Decision 93/211, by which the Commission reduced the minimum
import price for rice originating in the Netherlands Antilles which it had imposed as a
safeguard measure by Decision 93/127 to a level such that the rice in question was no
longer in an unfavourable position in relation to rice from non-member countries, is to
fix a threshold price for imports of Antillean rice which least disturbs the functioning of
the association of the OCTs with the Community, while remedying the difficulties which
have appeared on the Community market. Having regard to that objective, in so far as
the decision places Antillean rice in an unfavourable competitive position in relation to
Community rice, it is not contrary to the principle of proportionality, since it follows from
the very essence of a safeguard measure that some imported products will be subjected to
rules which are unfavourable in comparison with Community products.
7. In a legislative context involving the exercise of a wide discretion, a breach of
Community law by an institution is not in itself sufficient for the non-contractual liability
of the Community to be incurred, under the second paragraph of Article 215 of the
Treaty, in respect of damage suffered by individuals. Such liability cannot be incurred
unless the institution concerned has manifestly and gravely disregarded the limits on the
exercise of its powers.
Moreover, that a measure which is challenged in an action for damages is legislative in
character is not excluded by the fact that it is in the form of a decision and hence in
principle capable of being the subject of an action for annulment, nor by the fact that the
applicant is individually concerned by the measure, since the legislative character of a
measure depends on its nature, not its form, and an action for damages is an independent
remedy.
_______________________________________________________________________
C-382/95 – 18/12/97 – Techex Computer + Grafik Vertriebs GmbH v Hauptzollamt
München (European Court reports 1997 Page I-07363)
National legislation which, as regards the application of a special consumer tax and flat-
rate added special duty, determines the taxable value of imported used cars by reducing
the price of equivalent new cars by 5% for each year of age of the vehicles concerned, the
maximum reduction allowed as a rule being 20%, is contrary to Article 95 of the Treaty.
Since the annual depreciation in the value of cars is in general considerably more than
5%, that depreciation is not linear, especially in the first years when it is much more
marked than subsequently and since, finally, vehicles continue to depreciate more than
four years after being put into circulation, the taxable value resulting from those detailed
rules for calculating taxation does not correspond to the value resulting from the actual
wear and tear undergone by used cars, as a result of which the special consumer tax and
flat-rate added special duty imposed on imported used cars are usually higher than the
proportion of those taxes still incorporated in the value of used cars already registered
and purchased on the domestic market.
Similarly, national legislation which excludes anti-pollution technology cars from the
benefit of the reduced rates of special consumer tax applicable to that type of vehicle is
contrary to Article 95.
_______________________________________________________________________
C-347/95 – 17/9/97 – Fazenda Pública v União das Cooperativas Abastecedoras de Leite
de Lisboa, UCRL (UCAL) (European Court reports 1997 Page I-04911)
National charge on the marketing of dairy products - Charge having equivalent effect
-Internal taxation - Turnover tax
A charge on the marketing of diary products levied without distinction on domestic and
imported products constitutes a charge having an effect equivalent to a customs duty,
prohibited by Articles 9 and 12 of the Treaty, if the revenue from it is intended to finance
activities benefiting only the taxed domestic products and if the resultant advantages fully
offset the burden which the latter products bear; if those advantages only partly offset the
burden borne by the domestic products, the charge constitutes discriminatory internal
taxation prohibited by Article 95 of the Treaty and must be reduced proportionally. If the
activities financed by the charge benefit domestic products and taxed imported products
but the former obtain a proportionally greater advantage from them, the charge
constitutes, to that extent, a charge having an effect equivalent to a customs duty or
discriminatory internal taxation, depending on whether the advantage accruing to the
taxed domestic products fully or only partly offsets the burden which they bear. It follows
that, with a view to determining how the charges on the marketing diary products are to
be characterized in law, it is incumbent on the national court to consider:
- whether the revenue from the charge is used for stabilization only of trade with the
other Member States in the products which bear the charges;
- whether the institutional integration of the organizations representing the economic
agents concerned and the implementation of the national and Community aid schemes
and financial and fiscal incentives in favour of the agri-foodstuffs industry and the
distribution of agri-foodstuffs, to which part of the revenue from the charges in question
is appropriated, benefit only domestic production or whether they benefit such
production proportionally more than imported products.
Since the aim pursued by Article 33 of the Sixth Directive (77/388) on the harmonization
of the laws of the Member States relating to turnover taxes is to preclude the introduction
of taxes, duties and charges which, because they are levied on the movement of goods
and services in a way comparable to value added tax, would compromise the functioning
of the common system of value added tax, that provision does not preclude the levying of
a charge which is applied only to certain products, is not proportional to the price of
those products, is not charged at each stage of the production and distribution process
and is not imposed on the added value of the goods. Since it displays none of the
characteristics of value added tax, such a charge does not apply to the movement of
goods and services in a manner comparable to value added tax.
_______________________________________________________________________
C-338/95 – 20/11/1997 – Wiener S.I. GmbH v Hauptzollamt Emmerich (European Court
reports 1997 Page I-06495)
Article 17(1) of Regulation No 804/68, on the common organization of the market in milk
and milk products, as amended by Regulation No 3904/87, which empowers the
Community to grant export refunds on milk products included in the composition of other
products, read in conjunction with its annex, which includes in the list of products
attracting refunds `preparations with a basis of coffee' and refers in this regard to
subheading 2101 10 of the Combined Nomenclature (1992), is to be interpreted as
allowing export refunds to be granted in respect of milk products contained in both
preparations with a basis of coffee and preparations with a basis of extracts, essences or
concentrates of coffee.
Article 244 of Regulation No 2913/92, establishing the Community Customs Code, which
lays down the conditions under which suspension of implementation of decisions taken by
customs authorities in relation to the application of customs rules may be granted, is not
applicable to demands for repayment of export refunds. Export refunds constitute the
external aspect of the common agricultural pricing policy within the Community and
cannot therefore be regarded as measures governed by customs rules.
The second paragraph of Article 177 of the Treaty does not preclude a national court
which has ordered suspension of implementation of a national administrative decision
based on a Community act and which has, in accordance with the obligation incumbent
on it, referred to the Court for a preliminary ruling a question on the validity of the
Community act from granting leave to appeal against its decision.
Although the obligation to make a reference to the Court is founded on the necessity to
ensure that Community law is applied uniformly and to safeguard the Court's exclusive
jurisdiction to rule on the validity of an act of Community law, the need to comply with
those overriding considerations is not affected by the fact that an appeal can be lodged
against the decision of the national court, since, if that decision were to be set aside or
reversed on appeal, the preliminary ruling procedure would have no further purpose and
Community law would again be fully applicable. Secondly, the possibility of lodging such
an appeal does not prevent implementation of the preliminary ruling procedure by the
court ruling at last instance, which is obliged, under the third paragraph of Article 177 of
the Treaty, to make a reference if it has doubts concerning the interpretation or validity
of Community law.
_______________________________________________________________________
C-310/95 – 22/4/97 – Road Air BV v Inspecteur der Invoerrechten en Accijnzen
(European Court reports 1997 Page I-02229)
Association of overseas countries and territories - Import into the Community of goods
originating in a non-member country but in free circulation in an OCT - Article 227(3) of
the EC Treaty - Part Four of the EC Treaty (Articles 131 to 136a) - Council Decisions
86/283/EEC, 91/110/EEC and 91/482/EEC
Article 133(1) of the Treaty must be interpreted as not covering imports of goods in free
circulation in overseas countries and territories (OCT) but not originating there. An
interpretation whereby it extended to such goods would result in the OCT being granted
conditions similar to those which the Member States accord each other under the Treaty
and in their being included in the common customs area, a result which goes far beyond
what was envisaged by the Treaty.
The second paragraph of Article 136 of the Treaty must be interpreted as providing not
for a single `further period' following the initial period of five years mentioned in the first
paragraph of that article, for which the Council is empowered to adopt provisions needed
in order to attain the objectives of the association of overseas countries and territories,
but as introducing a regime under which, depending on the progress made, there may be
further successive periods, each covered by specific provisions adopted by the Council.
The reference to a `further period', unaccompanied by any mention of its duration, is in
itself indicative of the fact that the Council enjoys a discretion for the purpose of
progressively attaining the objectives mentioned in Article 132 of the Treaty. Since 1
March 1991, pursuant to Article 101(2) of Decision 91/482 on the association of the
overseas countries and territories (OCT), adopted by the Council in the exercise of the
powers conferred on it by the second paragraph of Article 136 of the Treaty, customs
duties may be levied on imports into the Community of goods which originate in
non-member countries but are in free circulation in an OCT if the duties paid on
importation into the latter were lower than those which would have been levied on
importation into the Community.
That provision makes the exemption from customs duties for which it provides in favour
of certain goods originating in non-member countries but in free circulation in an OCT
conditional upon the prior payment in that OCT of customs duties or charges having
equivalent effect, without any refund thereof, at a rate equal to or higher than that of the
duties applicable to imports of the same products into the Community.
Such retroactive application of a decision which entered into force on 20 September 1991
is permissible provided that the persons concerned enjoy more favourable conditions that
those previously in force and that their legitimate expectations are properly respected.
_______________________________________________________________________
C-274/95 to C-276/95 – 17/4/97 – Ludwig Wünsche & Co. v Hauptzollamt Hamburg-
Jonas (European Court reports 1997 Page I-02091)
The classification of esterified potato starch under heading 11.08 A IV of the Common
Customs Tariff, and under subheading 11 08 13 00 of the Combined Nomenclature, or
under heading 39.06 B I of the Common Customs Tariff, and under subheading 3505 10
50 of the Combined Nomenclature, depends primarily on its acetyl content and therefore
on its degree of esterification, since the mere chemical process of esterification occurring
in the manufacture of the product is not sufficient in itself to enable it to be decided that
the potato starch should be classified under one or other of those headings.
A maximum acetyl content of between 0.61% and 0.74% by weight of esterified potato
starch does not preclude that product from being classified under heading 11.08 A IV.
It is however for the national court to determine whether the nature of the esterification
does not amount to an alteration of the potato starch such that it no longer corresponds
qualitatively to native potato starch.
_______________________________________________________________________
C-272/95 – 15/4/97 – Bundesanstalt für Landwirtschaft und Ernährung v Deutsches
Milch-Kontor GmbH (European Court reports 1997 Page I-01905)
Since inspections carried out systematically by the Member State of dispatch and
intended to verify the composition and quality of skimmed-milk powder which is to be
denatured or processed into compound feedingstuffs on the territory of another Member
State and which, as such, is eligible for the grant of aid, are not provided for by the
relevant Community legislation, namely Article 2(1) and (4) of Regulation No 1624/76, in
the version set out in Regulation No 1726/79, and Article 10 of Regulation No 1725/79,
they constitute measures having equivalent effect to quantitative restrictions on exports in
trade between Member States which are prohibited by Article 34 of the Treaty. In this
respect, it is of no account whether those inspections are carried out at the frontier or
within the territory of the State of dispatch, provided that they are carried out with a view
to the future exportation of the same goods. Nor are the inspections justified by one the
requirements recognized by Article 36 of the Treaty. Such inspections are, on the other
hand, permissible if they are carried out only by way of spot checks.
A charge levied by a Member State in respect of inspections which are carried out on the
occasion of the export of skimmed-milk powder intended for the preparation of animal
feedingstuffs in another Member State, but which, by reason of their systematic nature,
can find no basis in Regulation No 1624/76 and Regulation No 1725/79, constitutes a
charge having equivalent effect to a customs duty on exports which is prohibited by
Articles 9 and 12 of the Treaty, even if it corresponds to the actual cost of each
inspection, and this is so whether the inspections are carried out at the frontier or within
the territory of the State of dispatch with a view to the future exportation of the inspected
goods.
_______________________________________________________________________
C-242/95 – 17/7/97 – GT-Link A/S v De Danske Statsbaner (DSB) (European Court
reports 1997 Page I-04449)
Maritime transport - Port duty on shipping and goods - Import surcharge - Abuse of a
dominant position
It is contrary to Article 95 of the Treaty for a Member State to impose a 40% import
surcharge on a general duty levied on goods loaded, unloaded, or otherwise taken on
board or landed within its ports or in the deep-water approach channels to its ports
where goods are imported by ship from another Member State.
It is for the domestic legal order of each Member State to designate the courts and
tribunals having jurisdiction and to lay down the detailed procedural rules, including
those relating to the burden of proof, governing actions for safeguarding rights which
individuals derive from the direct effect of Article 86 of the Treaty, provided that such
rules are not less favourable than those governing similar domestic actions and do not
render virtually impossible or excessively difficult the exercise of rights conferred by
Community law.
Where a public undertaking which owns and operates a commercial port occupies a
dominant position in a substantial part of the common market, it is contrary to Article
90(1) in conjunction with Article 86 of the EEC Treaty for that undertaking to levy port
duties of an unreasonable amount pursuant to regulations adopted by the Member State
to which it is answerable or for it to exempt from payment of those duties its own ferry
services and, reciprocally, some of its trading partners' ferry services, in so far as such
exemptions entail the application of dissimilar conditions to equivalent services. It is for
the national court to determine whether, having regard to the level of the duties and the
economic value of the services supplied, the amount of duty is actually unfair. It is also
for the national court to determine whether exempting its own ferry services, and
reciprocally those of some of its trading partners, from payment of duties in fact amounts
to the application of dissimilar conditions to equivalent services.
Dock work consisting of loading, unloading, transhipment, storage and general
movement of goods or material of any kind is not necessarily of general economic
interest exhibiting special characteristics compared with that of other economic
activities. In any event, Article 90(2) of the Treaty does not permit a public undertaking
which owns and operates a commercial port to levy for the use of port facilities duties
which are contrary to Community law and which are not necessary to the performance of
the particular task assigned to it.
Persons or undertakings on whom duties incompatible with Article 90(1) in conjunction
with Article 86 of the Treaty have been imposed by a public undertaking which is
responsible to a national ministry and whose budget is governed by the Budget Law are
in principle entitled to repayment of the duty unduly paid.
The only exception is where it is established that the person required to pay those
charges has actually passed them on to other persons. However, traders may not be
prevented from applying to the courts having jurisdiction, in accordance with the
appropriate procedures of national law, for reparation of loss caused by the levying of
charges not due, irrespective of whether those charges have been passed on.
_______________________________________________________________________
C-192/95 to C-218/95 – 14/1/97 – Société Comateb (C-192/95), Société Panigua
(C-193/95), Société Edouard et fils (C-194/95), Société de distribution de vins et liqueurs
(C-195/95), Etablissements André Haan (C-196/95), Société Diffusion générale de
quincaillerie (C-197/95), Société Diffusion générale (C-198/95), Société Cama Renault
(C-199/95), Scp Ovide et Dorville (C-200/95), Société Ducros Guadeloupe (C-201/95),
Société Comptoir commercial Caraïbes (C-202/95), Société Giafa (C-203/95), Société
LVS (C-204/95), Société Catherine et Jean-Claude Tabar Nouval (C-205/95), Société
L'Heure et L'Or (C-206/95), Société Général bazar bricolage (C-207/95), Société Grain
d'or (C-208/95), Société Cash Service (C-209/95), Etablissements Efira (C-210/95),
Société Farandole (C-211/95), Société Carat (C-212/95), Société Rio (C-213/95), Société
guadeloupéenne de distribution moderne (SGDM) (C-214/95), Martinique automobiles
SA (C-215/95), Socovi SARL (C-216/95), Etablissements Gabriel Vangour et Cie SARL
(C-217/95), Simat Guadeloupe SARL (C-218/95) v Directeur général des douanes et
droits indirects (European Court reports 1997 Page I-00165)
Dock dues - Recovery of sums unduly paid - Obligation to pass on the charge - Overseas
departments
A Member State may object to repayment to the trader of a national charge levied in
breach of Community law only where it is established that the charge has been borne in
its entirety by someone other than the trader and that reimbursement to the trader would
amount to his unjust enrichment. It is for the national courts to determine, in the light of
the facts in each case, whether those conditions have been satisfied. If the charge has
been passed on only in part, it is for the national authorities to reimburse to the trader
the sum not passed on. The fact that a legal obligation exists to incorporate the charge in
the cost price does not mean that it can be assumed that the entire charge has been
passed on, even when failure to comply with that obligation would involve a penalty.
Where, although the charge has been passed on to purchasers, the rules of domestic law
permit traders to allege that they have been caused damage by the illegal levying of the
charge, to the total or partial exclusion of any unjust enrichment, it is for the national
court to draw the appropriate inferences. Such damage could be caused by, inter alia, the
fact that the unlawful charge by increasing the price of the imported goods has reduced
sales and thus profits.
_______________________________________________________________________
C-164/95 – 17/6/97 – Fábrica de Queijo Eru Portuguesa Ldª v Alfândega de Lisboa
-Tribunal Técnico Aduaneiro de 2ª Instância (European Court reports 1997 Page I-03441)
The Court has jurisdiction to give preliminary rulings on provisions of Community law in
situations in which the facts of the case fall outside the scope of Community law where, in
regulating internal situations, domestic legislation has adopted the same solutions as
those adopted in Community law so as to provide for one single procedure in comparable
situations. It is clearly in the Community interest that, in order to forestall future
differences of interpretation, provisions or concepts taken from Community law should be
interpreted uniformly, irrespective of the circumstances in which they are to apply. On a
proper construction of the second paragraph of Article 244 of Council Regulation 2913/92
establishing the Community Customs Code, the customs authorities should suspend
implementation of a disputed customs decision in whole or in part where one only of the
two conditions mentioned in that provision is fulfilled, so that suspension must be granted
where there is a risk of irreparable damage to the person concerned. It is not necessary
that there be reason to believe that the disputed decision is inconsistent with customs
legislation.
As regards interpretation of the term `irreparable damage', guidance is provided by the
interpretation of that term as a condition for the grant of an order suspending operation
of an act under Article 185 of the Treaty.
The fact that irreparable damage may be suffered by the person concerned in the event of
immediate implementation of a disputed customs decision does not prevent the customs
authorities from making suspension of its implementation conditional upon the lodging of
security. Although under the second paragraph of Article 244 of the Community Customs
Code the condition relating to the risk of irreparable damage is a ground justifying
suspension of implementation of a disputed decision, that condition is not relevant as
regards the necessity of providing security.
However, if the requirement to lodge security is likely, owing to the debtor's
circumstances, to cause serious economic or social difficulties, the customs authorities
are free to decide not to require such security to be lodged. This would be the case if the
debtor did not have sufficient means to provide such security.
Where suspension of implementation of a disputed customs decision is subject, under the
third paragraph of Article 244 of the Community Customs Code, to the lodging of
security, the amount of that security must be set at the precise amount of the debt or, if
this cannot be established with certainty, at the maximum amount of the debt which has
been, or may be, incurred, unless the requirement to provide security is likely to cause
the debtor serious economic or social difficulties; if that is the case, the amount of
security may be set, taking into account the debtor's financial situation, at an amount less
than the total amount of the debt concerned.
_______________________________________________________________________
C-121/95 – 20/6/96 – Vobis Microcomputer AG v Oberfinanzdirektion München
(European Court reports 1996 Page I-03047)
Common Customs Tariff - Tariff headings - Basic module for the assembly of a data-
processing machine - Classification in the Combined Nomenclature
The Combined Nomenclature of the Common Customs Tariff, in the version annexed to
Regulation No 2502/92 amending Annexes I and II to Regulation No 2658/87, is to be
interpreted as meaning that a basic module for the assembly of a data-processing
machine, consisting of a housing essentially containing two disk drives, is to be
classified, pursuant to General Rule 3(b) for the interpretation of the Combined
Nomenclature of the Common Customs Tariff, under subheading No 8471 93 59 as a
"storage unit", on the basis of the drives it contains. The disk drives which give such a
basic module for data processing its essential character fall within that subheading in
view of their characteristics.
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C-114/95 and C-115/95 – 17/7/97 – Texaco A/S v Middelfart Havn, Århus Havn, Struer
Havn, Ålborg Havn, Fredericia Havn, Nørre Sundby Havn, Hobro Havn, Randers Havn,
Åbenrå Havn, Esbjerg Havn, Skagen Havn and Thyborøn Havn and Olieselskabet
Danmark amba v Trafikministeriet, Fredericia Kommune, Køge Havn, Odense
Havnevæsen, Holstebro-Struer Havn, Vejle Havn, Åbenrå Havn, Ålborg Havnevæsen,
Århus Havnevæsen, Frederikshavn Havn, Esbjerg Havn (European Court reports 1997
Page I-04263)
It is contrary to Article 95 of the Treaty for a Member State to impose a 40% import
surcharge on a general duty levied on goods loaded, unloaded, or otherwise taken on
board or landed within its ports or in the deep-water approach channels to its ports
where goods are imported by ship from another Member State.
Article 18 of the Agreement between the European Economic Community and the
Kingdom of Sweden imposes on the contracting parties a rule against discrimination in
matters of taxation, which is dependent only on a finding that the products affected by a
particular system of taxation are of like nature, and which prohibits discrimination
arising from any measure or practice having a direct or indirect effect on the way in
which taxes imposed on the other contracting party's products are determined, applied or
collected. It follows that a goods duty which forms part of a general system of internal
dues applying systematically to categories of products according to objective criteria
applied without regard to the origin of the products constitutes an internal measure of a
fiscal nature within the meaning of Article 18 of that Agreement.
Accordingly, a 40% import surcharge on a general duty levied on goods loaded,
unloaded, or otherwise taken on board or landed within its ports or in the deep-water
approach channels to its ports where goods are imported by ship is contrary to
Community law where it is applicable to goods imported from a non-member country
with which the Community has concluded an agreement containing provisions similar to
those of Article 18 of the Agreement between the European Economic Community and the
Kingdom of Sweden.
Article 95 of the Treaty applies only to products from the Member States and, where
appropriate, to goods originating in non-member countries which are in free circulation
in the Member States. It follows that that provision is not applicable to products imported
directly from non-member countries. Furthermore, for trade with non-member countries,
as far as internal taxation is concerned, the Treaty does not include any rule analogous
to that laid down in Article 95.
Where a Member State has imposed or approved a duty contrary to Community law, it is
required in principle to repay the duty levied in breach of Community law. If the
proceeds of the duty have been allocated to independent operators subject to local
authority control, it is not contrary to Community law for the action for repayment of
those duties to lie against one of those operators, provided that the rules governing such
actions are not less favourable than those governing similar domestic actions and are not
so framed as to render virtually impossible or excessively difficult the recovery of duty
unduly paid.
It is not contrary to Community law for a national limitation period applicable to claims
for repayment of duties levied in breach of Article 95 of the Treaty or a provision similar
to Article 18 of the Agreement concluded between the European Economic Community
and the Kingdom of Sweden to run from an earlier point in time than that from which the
duties were discontinued.
The laying down of reasonable limitation periods, which is an application of the
fundamental principle of legal certainty, cannot be regarded as rendering virtually
impossible or excessively difficult the exercise of rights conferred by Community law.
_______________________________________________________________________
C-97/95 – 17/7/97 – Pascoal & Filhos Ldª v Fazenda Pública (European Court reports
1997 Page I-04209)
In an action for annulment, the Community Court cannot, without encroaching on the
prerogatives of the administrative authority, order a Community institution to take the
necessary measures to comply, as required by Article 176 of the Treaty, with a judgment
by which a decision is annulled. In an action for annulment of a Commission decision
finding that remission of import duties is not justified, it is therefore inadmissible to seek
an order requiring the Commission to adopt a new decision on the matter. Article 5(2) of
Regulation No 1697/79 lays down three conditions which must be met concurrently to
enable the competent customs authorities to refrain from taking action for the
post-clearance recovery of import duties: the duties must not have been collected as a
result of an error made by the competent authorities, the person liable must have acted in
good faith ° that is to say that he could not reasonably have detected the error made by
the competent authorities ° and he must have observed all the provisions laid down by the
rules in force as far as his customs declaration is concerned. In order to determine, more
particularly, whether or not the error could have been detected by the trader concerned,
all the circumstances of the individual case must be assessed objectively, taking into
account, in particular, the nature of the error, the professional experience of the trader
concerned and the degree of care which he exercised. A trader does not exercise sufficient
care if, by paying the exporter' s invoice before receiving the assessment notice, which
contained an error, he took a financial risk which was not unavoidable by virtue of his
contractual obligations and so cannot claim to have entertained a legitimate expectation,
subsequently frustrated, as to the absence of any customs debt, and if the error could have
been detected by an attentive trader by reading the Official Journal in which the relevant
provisions had been published several days before the import transactions in question
took place. In that regard, the duty to consult the Official Journal does not apply only to
commercial traders whose activities essentially consist of import-export operations but
also to those who have gained some experience of importing the goods in question.
Although the Commission is wrong in law if it applies Regulation No 1430/79 on the
repayment or remission of import or export duties in a case submitted to it by national
authorities where the duty had not been paid and where it should therefore have applied
Regulation No 1697/79 on the post-clearance recovery of such duties, such an error does
not justify annulling the Commission' s decision where obvious negligence on the part of
the trader, which the Commission considers precludes him from benefiting from the
provisions of Article 13 of Regulation No 1430/79, is linked to the fact that the error is
capable of being detected, which can preclude him from benefiting from the provisions of
Article 5(2) of Regulation No 1697/79, and where the Commission' s confusion of the two
legal bases was of a purely formal nature and did not have any decisive influence as to
the outcome of its substantive examination.
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C-67/95 – 9/10/97 – Rank Xerox Manufacturing (Nederland) BV v Inspecteur der
Invoerrechten en Accijnzen (European Court reports 1997 Page I-05401)
Common Customs Tariff - Tariff headings - Copiers and fax machines - Classification in
the combined nomenclature
The Common Customs Tariff must be interpreted as meaning that apparatuses which can
both send faxes and make copies, and comprise a scanning device (scanner), a digital
storage device (memory) and a printing device (laser printer), are to be classified under
sub-heading 9009 12 00 of the combined nomenclature.
Such multi-function machines, which might be classified either under heading 8517 or
under heading 9009, must be classified, in accordance with general rule 3(c) for the
interpretation of the combined nomenclature, under the heading which occurs last in
numerical order among those which equally merit consideration since, first, general rule
3(a), according to which the most specific description is to be preferred, is excluded
because the relevant tariff headings fall within different chapters and, second, general
rule 3(b) does not apply because those apparatuses display no feature enabling their
essential character to be determined.
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C-47/95, C-48/95, C-49/95, C-50/95, C-60/95, C-81/95, C-92/95 and C-148/95 –
12/12/96 – Olasagasti & C. Srl (C-47/95), Comarcon SNC (C-48/95), Ghezzi Alimentari
Srl (C-49/95), Fredo Srl (C-50/95), Cateringros Srl (C-60/95), Intercod Srl (C-81/95),
Nuova Castelli SpA (C-92/95) and Igino Mazzola SpA (C-148/95) v Amministrazione
delle finanze dello Stato (European Court reports 1996 Page I-06579)
The suspension of residual customs duties applicable to imports from Spain into the
Community of Ten under Article 75(1) of the Act of Accession, provided for in Article
1(1) of Regulation No 3416/91 on certain residual duties applicable in 1991 in the
framework of the successive reduction in accordance with the Act of Accession of Spain
and Portugal for the agricultural products listed in the Annex to Regulation No 3835/90,
amending Regulations Nos 3831/90, 3832/90 and 3833/90 in respect of the system of
generalized tariff preferences applied to certain products originating in Bolivia,
Colombia, Ecuador and Peru, does not apply to imports of preserved tuna in olive oil
from Spain.
Provisions granting suspension of customs duties are to be interpreted strictly according
to their terms and may not therefore be applied, contrary to their wording, to products
which they do not mention.
Whilst it is true, first, that Regulation No 3416/91 sought to ensure that agricultural
products imported from Spain and Portugal were treated no less favourably than the
same products imported from the four non-member countries mentioned in Regulation No
3835/90 and granted preferential treatment, and, second, that preserved tuna in olive oil
ranks among the agricultural products listed in the Annex to the latter regulation, the fact
nevertheless remains that the wording of Article 1(1) of Regulation No 3416/91 makes no
reference to Article 173 of the Act of Accession, which, forming part of Chapter 4 dealing
with fisheries, a chapter quite separate from Chapter 3 which deals with agriculture,
provides for the progressive abolition of customs duties on fishery products. Furthermore,
the suspension of customs duties on fishery products requires an act of the Council.
Although Article 75(4) of the Act of Accession, on which that regulation is based,
empowers the Commission to suspend customs duties on the products mentioned in that
article, no provision of the Act of Accession empowers the Commission to suspend duties
on fishery products.
Only measures relating to the tariff classification of goods addressed by the competent
authorities directly to a particular trader in a specific case and falling within the
category exhaustively defined by Regulation No 1715/90 constitute `information given by
the customs authorities themselves which is binding on them' within the meaning of the
second indent of Article 5(1) of Regulation No 1697/79 on the post-clearance recovery of
import or export duties.
Article 5(2) of Regulation No 1697/79 on the post-clearance recovery of import or export
duties makes the right of the person liable to pay customs duties not to have
post-clearance recovery effected by the competent authorities subject to three conditions
whose fulfilment is a matter to be assessed by the national court, namely: the competent
authorities themselves must have made an error, that error must be such that it could not
reasonably have been detected by the person liable and the person liable must have acted
in good faith and complied with all the provisions laid down by the legislation in force so
far as his customs declaration is concerned.
In determining whether or not the error committed by the authorities could reasonably
have been detected by the person liable account should be taken, in particular, of the
nature of the error, the professional experience of the trader concerned and the degree of
care exercised by him. The relevant factors to be taken into account include the
complexity of the legislation, the terms in which the objective of the provisions at issue is
expressed, recurrence of the error in question in other measures of the Member State
concerned and any divergence of views between the Member States as to the proper
interpretation of the relevant provisions.
_______________________________________________________________________
C-38/95 – 12/12/96 – Ministero delle Finanze v Foods Import Srl (European Court
reports 1996 Page I-06543)
Common Customs Tariff - Tariff headings - Fish of the Molva molva kind
Upon application of rule 1 of the general rules for the interpretation of the Common
Customs Tariff nomenclature, tariff headings 03.02 A I b) and 03.02 A II a) of the
Common Customs Tariff, covering respectively whole cod, headless cod or pieces of cod,
dried, salted or in brine and fillets of cod, dried, salted or in brine, as amended by
Regulation No 3796/91 on the common organisation of the market in fishery products,
are to be interpreted as meaning that the list of species whose scientific names are
indicated in brackets following the word `cod' is exhaustive, so that ling, whose scientific
name is Molva molva, does not fall under those headings and must therefore be classified
under the residual headings 03.02 A I f) and 03.02 A II d), which means that it is
excluded from the suspension of customs duties on imports provided for by Article 20 of
the regulation.
In order to determine whether the error committed by the competent authorities `could
not reasonably have been detected by the person liable' within the meaning of Article
5(2) of Regulation No 1697/79, 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, account must be
taken, in particular, of the nature of the error, the professional experience of the trader
concerned and the degree of care which he exercised. The relevant factors to be taken
into consideration in assessing the nature of the error include the possibility that the
terminology used may have caused confusion, the fact that a change of rule was not
apparent and the time taken by the competent authorities themselves to realize that such
a change had been made. It is for the national court to determine, on the basis of that
interpretation, whether or not the error which led to duties not being collected was
detectable by the person liable.
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