Opinion of Mr Advocate General Mischo

Mr President,

Members of the Court,

In Case 160/84, the Court is asked to rule on an application brought by private companies against a decision adopted by the Commission under Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (Official Journal L 175, p. 1).

That article, as amended by Council Regulation No 1672/82 of 24 June 1982 (Official Journal L 186, p. 1), provides that:

In its judgment of 15 December 1983 in Case 283/82, the Court decided that Article 13 appears... to be a general equitable provision designed to cover situations other than those which had most often arisen in practice and for which special provision could be made when the regulation was adopted.

But what are the circumstances which gave rise to the present action?

I — The facts of the case

1. With a view to importing from nonmember countries two consignments of rice of 600 tonnes and 400 tonnes respectively, the applicant companies, which have their registered offices in the city of Kavala, which is east of Salonika, telephoned the competent section of the Ministry of Agriculture on 26 August 1981 to find out the rate of levy applicable and to inquire what supporting documents were required for importation.

2. On 27 August 1981, the applicants submitted applications for licences to the same section of the Ministry. At the same time, they lodged the required letters of guarantee from a bank.

3. When the consignments of rice arrived on 28 September 1981, the customs office informed the applicants that the levy on importation was not DR 381 per tonne but DR 3811 per tonne because the applicants had submitted an import certificate rather than an advance fixing certificate. The applicants then asked that the rice be placed in a customs warehouse until the Ministry of Agriculture could clear up the matter.

4. On the expiry of the time-limit beyond which the goods could no longer be kept in customs warehouses, that is to say, on 27 September 1983, two years after they had been placed therein, the applicants cleared through customs 997 tonnes of rice, on which the rate of levy on that date was DR 11487.54 per tonne.

5. The applicants therefore applied for remission of that part of the levy exceeding the amount which would have been due on the basis of the rate of levy which was in force on 26 August 1981, namely DR 381 per tonne (that is to say, DR 11452296 minus DR 379832 = DR 11072464).

6. In a letter addressed to the Commission on 30 November 1983, the Greek Ministry of Finance applied for remission of the import duties under Article 13 of Regulation (EEC) No 1430/79. In that application, the Ministry of Finance stated that the conduct of the undertakings concerned did not involve any negligence or deception, that the officials of the competent section clearly did not grasp the difference between an ordinary import licence and an advance fixing certificate and that the competent section of the Ministry of Agriculture did not inform the undertakings of the difference between ordinary import licences and advance fixing certificates.

7. In its decision of 25 April 1984, the Commission refused the application for remission of duties on the following grounds:

8. By an application received at the Court Registry on 25 June 1984, the applicants brought an action for a declaration that the Commission decision of 25 April 1984 was void. In a separate document, received at the Court Registry on the same day, the applicants made an application under Article 185 of the EEC Treaty for suspension of the operation of the contested decision. That was granted to them by two successive orders of the President of the Court which suspended operation of the decision pending the Court's judgment.

9. By order of 14 February 1985, the Court issued letters rogatory for the hearing of four witnesses by the competent Greek judicial authority. Those witnesses were duly heard.

II — Legal considerations

1. The Commission does not contend that the application is inadmissible. It is in fact clear from the circumstances of the case that the contested decision, although addressed to the Hellenic Republic, is of direct and individual concern to the applicants. It is thus not necessary to spend any time on the question of admissibility.

2. With regard to the substance of the case, the question of law which arises is whether the applicants have in fact established the existence of special circumstances and the absence of negligence or deception on their part, so as to be able to benefit from the provisions of Article 13 of Regulation No 1430/79.

3. It is difficult to deny that the difference between ordinary import licences and advance fixing certificates is sufficiently clear in the regulations applicable to this case and, in particular, in Article 13 of Council Regulation No 1418/76 of 21 June 1976 on the common organization of the market in rice (Official Journal L 166 of 25 June 1976, p. 1) and Article 8 of Commission Regulation No 3183/80 of 3 December 1980 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (Official Journal L 338 of 13 December 1980, p. 1).

4. In the present case, the applicants sought information from the competent authorities on the law applicable and the procedures to be followed.

The existence of special circumstances

In Case 85/78 (Bundesanstalt fur Landwirtschaftliche Marktordnung v Hirsch [1978] ECR 2517) the Court decided that in view of the continual variations in the rate of levy, if errors relied upon by traders were taken into consideration it would be possible to call in question unilaterally, on the basis of those fluctuations, the undertakings given by importers An importer cannot, within the context of the organization of the market established by Regulations Nos. 19 and 130, rely upon an error made by him as regards the option of choosing between the rate of levy in force at the date of lodging the application and that in force at the date of importation.

Indeed, all sorts of exaggerated claims and speculation would be possible if importers were to be allowed to rely on an oversight or error committed at the time when the application for the licence was being filled in.

The Greek authorities were therefore justified in this case in rejecting the applicants' request to correct the import licence in order to turn it into an advance fixing certificate. That would have constituted an improper application of the procedure for correcting licences.

Similarly, there can be no question of accepting that ignorance of Community law can of itself constitute a special circumstance.

Lastly, it cannot be accepted that there is a sort of general period of grace in favour of new Member States during which ignorance of the applicable law and procedural errors, on the part of both national administrations and traders, will be overlooked more or less automatically.

However, it seems to me that there is in this case a series of factors which, when taken together, are of such a nature as to constitute special circumstances.

Let me summarize those factors once again:

The last three factors are, in my view, the most important.

It should also be noted that in its defence the Commission does not exclude the possibility that a fault committed by the administration might constitute a special circumstance within the meaning of Article 13. The Commission merely denies that the Greek public services can be criticized in this instance. However, the Greek administration has itself made the admission set out above.

In certain of its decisions, the Commission has accepted an administrative failure as justification for the reimbursement or nonrecovery of customs duties.

Thus, a decision of 27 July 1981 (No REM 7/81) adopted pursuant to Article 13 of Regulation No 1430/79 granted a remission of customs duties on the ground that the customs office at which the export formalities had been carried out should have required the person making the declaration to fill in an application for an outward processing authorization because the company's statements in its export declaration clearly showed that it intended to re-import the object after it had been repaired abroad.

It is interesting to note that in this case, the Commission criticized the national administration for not actually having drawn the attention of a private individual to an administrative procedure which he ought to have followed.

In two other cases (Decision No REM 12/82 of 25 October 1982 and Decision No REM 23/84 of 14 September 1984), the Commission regarded as a special circumstance the fact that wrong information given by a customs office led a private individual not to carry out a formality which he could easily have carried out if he had been correctly informed.

Finally, in the context of Regulation No 1697/79 on the post-clearance recovery of import duties or export duties, the Commission accepted that a malfunction in the computer used by a national administration to ascertain the extent to which a tariff quota had been exhausted could be regarded as a special circumstance and justify a decision not to proceed with the post-clearance recovery of customs duties normally due (decision of 3 December 1984, ref. REC 3/84).

It is true that in two of the cases cited above, the goods were re-exported to places outside the Community. However, unlike the other provisions of Regulation No 1430/79, Article 13 does not require that condition to be fulfilled.

Thus the examples cited also tend to prove that a series of factors such as those to be found in this case, including in particular a failure on the part of the administration, may be regarded as a special circumstance within the meaning of Article 13 of Regulation No 1430/79.

It must not be forgotten that the Court has described Article 13 as an equitable provision (see page 1634).

The stricter conditions required by the Court to establish the existence of force majeure are thus not applicable here.

Finally, it remains for me to say a word about the other ground for rejection advanced by the Commission in its decision of 25 April 1984 according to which it is not possible to treat the two companies concerned as if they had applied for and obtained advance fixing certificates. That line of argument is not convincing because the question is precisely whether or not there are special circumstances. If there are, it is perfectly possible to regard the two companies as having applied for and obtained advance fixing certificates.

The argument to the effect that it is not for the Community to assume the commercial risk resulting from changes in the rate of the import levy while the rice was held in a customs warehouse depends on whether the applicants actually took a commercial risk and speculated on a reduction in the levy — as for the reasons set out above, I do not believe they did — or whether they left the goods in the warehouse because they thought that a satisfactory solution to their problem would shortly be found.

In conclusion, I consider that in this case there are special circumstances within the meaning of Article 13 of Regulation No 1430/79 and that the Commission was wrong to consider that the applicants were guilty of negligence in not obtaining sufficient information concerning the rules in force.

I therefore propose that the Court should declare void the Commission decision of 25 April 1984 on the ground that it constitutes an incorrect application of the abovementioned Article 13 and order the Commission to pay the costs.

1 Translated from lhe French.

2 Papierfabrik Schoellershammer H. A. Schoeller v Commission [1983] ECR 4219.

3 Manfred Müller, Erstattung und Erlaß von Eingangs-Ausfuhrabgaben, in Rudolf Regul (Editor), Gemeinschafiszollrecht, Nomos Verlag, Baden-Baden, 1982, page 1341, paragraph 3.