JUDGMENT OF 27. 5. 1982 — CASE 113/81 REICHELT v HAUPTZOLLANrr BERLIN-SÜD

In Case 113/81 REFERENCE to the Court under Article 177 of the EEC Treatv by the Finanzgericht [Finance Court] Berlin tor a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: G. Bosco, President of Chamber, A. O'Keeffe and T. Koopmans, Judges, Advocate General: S. Rozes Registrar: J. A. Pompe, Deputy Registrar

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Summary of the written observations submitted to the Court

As to Point (a)

As to Point (b)

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

2. Subsequently the plaintiff in the main action brought an action before the Finanzgericht Berlin seeking an order compelling the defendant to reconsider its application for the remission of duty. It claimed that its application fulfilled the conditions for remission on equitable grounds of customs duty overpaid. The judgment of the Court in Case 118/76 cited by the defendant has no application in this case since the remission of duty-overpaid, which is not provided for by-Community law, cannot affect the operation of the relevant provisions of Community law. The errors in its customs declarations, which remained undetected by the defendant for 23 months, were excusable in view of the profusion of customs provisions. It was not possible for the increased duty to be passed on to consumers since sale prices on the coffee market are determined solely by the state of competition.

3. The order of the Finanzgericht dated 2 April 1981 referring the matter to the Court of Justice was lodged at the Court Registry on 11 May 1981.

II —. Summary of the written observations submitted to the Court

(a). whether Regulation No 1430/79 and its implementing regulation, Commission Regulation No 1575/80 (Official Journal 1980, L 161, p. 13) establishing equitable principles to apply at Community level from 1 July 1980, extend to cases in which the duty which is the subject of proceedings initiated to obtain its repavment was recorded in the accounts prior to the entry into force of those regulations; and

(b). whether the uniform applicatoin of Community law is also affected by the application of a national equitable rule even if the repayment in question is merely that of a sum considered objectively by Community law as not due.

III —. Oral procedure

1. By an order dated 2 April 1981, which was received at the Court on 11 May 1981, the Finanzgericht Berlin referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Community law, in particular Article 27 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of impon or export duties (Official Journal 1979, L 175, p. 1).

2. The question was raised in connection with an action brought by a company specializing in the retail grocery trade against the refusal of the German customs authorities to remit on equitable grounds customs duties overpaid.

3. The order making the reference states that in 1977 and 1978 the company in question paid impon duty on raw coffee at a rate of 7 %, whereas the rate applicable at the time was only 5 % as a result of a suspension of duty. The competent customs authorities repaid pan of the amount overpaid but refused to repay the rest on the ground that the period prescribed for the repayment of customs duties under the relevant German legislation had expired. The company then claimed, under Article 227 of the Abgabenordnung [German Revenue Code] in the version in force as from 1 January 1977, the remission on equitable grounds of the amount outstanding.

4. The customs authorities refused to allow it the benefit of the German equitable rules on the ground that it was precluded from doing so by Communitv law. In that regard, thev relied on the judgment of the Coun of 2S June 1977 in Case 118/76 (Balkan Import-Export [1977] ECR 1177). In the action which it brought against that decision the company contended that the judgment cited above did not preclude the remission of customs duties overpaid.

5. The Finanzgericht found that repayment and remission, where no customs debt existed or where the assessment of customs duties lawfully due was excessive were governed bv Regulation No 143C/79. which, according to Article 27 thereof, entered into torce on 1 July 19SC.

6. In those circumstances, the Finanzgericht referred the following question to the Court of Justice for a preliminary ruling:

7. It is clear from the aforementioned judgment of 28 June 1977 that in the absence of relevant Community legislation, the national customs authorities may apply the provisions of their national law to a claim for remission on equitable grounds of charges due under Community law, provided that the application of those provisions does not alter the effect of the rules of Community law relating to the basis of assessment, the manner of imposition or the amount of the charge in question.

8. The claim for remission on equitable grounds referred to by the national court relates to sums which should unquestionably not have been paid had Community law been correctly applied.

9. In those circumstances, the rules of Community law relating to the basis of assessment, the manner of imposition or the amount of customs duty are in no way affected by the application of a provision of national law concerning the remission of customs duty on equitable grounds, provided however that the conditions for such remission are the same as those applied to claims for the remission of charges imposed by national law.

10. That being the position in the absence of relevant provisions of Community law, it is appropriate to consider whether Regulation No 1430/79, Article 1 of which lavs down the conditions under which the competent authorities are to repay or remit impon or export duties, applies to the case referred to by the national court.

11. The contested decision whereby the customs authorities refused to apply Article 227 of the Abgabenordnung was adopted on 6 April 1979. Regulation No 1430/79 entered into force on 1 July 1980 in accordance with Article 27 thereof. It does not contain any transitional provisions.

12. Thus the question raised by the national court seeks in effect to ascertain whether Regulation No 1430/79 has retroactive effect in the sense that its provisions are applicable to a decision on the remission of customs dunadopted by the national customs authorities before 1 July 1980.

13. The purpose of Regulation No 1430/79 is to replace the relevant national legislation with Community legislation. It contains a set of rules which form an indivisible whole and the individual provisions of which may not be considered in isolation, with regard to the time at which they take effect.

14. There are no sufficiently clear indications, either in the wording of the regulation or in the objectives which may be inferred from the preamble and from the general scheme of the regulation, to justify the conclusion that it provides otherwise than for the future.

15. Thus, according to generally recognized principles of interpretation, the provisions of Regulation No 1430/79 cannot be considered to apply retroactively to decisions adopted by the competent authorities before the entry into force of the regulation.

16. Therefore the question raised should be answered as follows:

17. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (First Chamber), in answer to the questions submitted to it by the Finanzgericht Berlin by order of 2 April 1981, hereby rules:

1 In the absence of relevant Community legislation, a national customs authority may apply the provisions of its national law to a claim for remission on equitable grounds of customs duties paid in excess of the amount due. The conditions for such remission must be the same as those applied to claims for the remission of charges imposed by national law.

2 The provisions of Regulation No 1430/79 do not apply to a decision concerning the remission of customs duties adopted by the national customs authorities before the entry into force of the regulation.