Judgment of the Court (Fifth Chamber) 26 June 1990

In Case C-64/89 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof (Federal Finance Court) for a preliminary ruling in the proceedings pending before that court between

THE COURT (Fifth Chamber) composed of: M. Zuleeg, President of Chamber, acting as President of the Fifth Chamber, R. Joliét, J. C. Moitinho de Almeida, G. C. Rodríguez Iglesias and F. Grévisse, Judges, Advocate General: J. Mischo Registrar: J. A. Pompe, Deputy Registrar

after considering the observations submitted on behalf of the Spanish Government, by Javier Conde de Saro and Rosario Silva de Lapuerta, acting as Agents, the Commission of the European Communities, by Jörn Sack, Legal Adviser, acting as Agent, assisted by Renate Kubicki, an official of the Ministry of Justice of the Federal Republic of Germany seconded to the Commission's Legal Department,

having regard to the Report for the Hearing,

after hearing oral argument by the Spanish Government and the Commission at the hearing on 8 February 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 8 March 1990,

gives the following

Judgment

The interpretation of Article 4 of the Commission Regulation

The interpretation of Article 5(2) of the Council Regulation

Costs

1. By an order of 24 January 1989, which was received at the Court on 3 March 1989, the Bundesfinanzhof referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Article 4 of Commission Regulation (EEC) No 1573/80 of 20 June 1980 laying down provisions for the implementation of Article 5(2) of Council Regulation (EEC) No 1697/79 (Official Journal 1980, L 161, p. 1; hereinafter referred to as the Commission Regulation), and on Article 5(2) of Council Regulation 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 (Official Journal 1979, L 197, p. 1; hereinafter referred to as the Council Regulation).

2. Those questions were raised in proceedings brought by Deutsche Fernsprecher GmbH (hereinafter referred to as Deutsche Fernsprecher) against the Hauptzollamt Gießen (hereinafter referred to as the Hauptzollamt) with regard to the validity of the post-clearance recovery of import duties on certain items of telephone equipment that had been subject to outward processing.

3. The outward processing system, as provided for in Council Regulation (EEC) No 2473/86 of 24 July 1986 on outward processing relief arrangements and the standard exchange system (Official Journal 1986, L 212, p. 1), allows Community goods to be temporarily exported from the customs territory of the Community in order to undergo processing operations, and the compensating products resulting from those operations to be released for free circulation in the customs territory of the Community with total or partial relief from import duties.

4. Between 10 June 1981 and 27 May 1982 Deutsche Fernsprecher declared for entry into free circulation at a customs post telephone equipment components manufactured in a prior outward processing operation mainly from products which had previously been exported from the Community without waiver or repayment of customs duties.

5. In its customs declaration, Deutsche Fernsprecher mentioned all the factors to be taken into account for the collection of customs duties, in particular the actual value of the items temporarily exported. Subsequently, the products were nevertheless exempted from customs duties, since the customs value of the products which had undergone processing was calculated on the basis of the amount paid for the processing operations, without account being taken of the actual value of the Community goods temporarily exported. Deutsche Fernsprecher doubted whether that exemption was valid and therefore asked the customs office to reexamine its case. It then received confirmation from the director of the customs office of the exemption from customs duty.

6. By way of two amending notices dated 1 and 2 July 1982, the Hauptzollamt decided to effect post-clearance recovery of customs duties whose total amount had been fixed, following a complaint from Deutsche Fernsprecher, at DM 27114.70.

7. Subsequently, Deutsche Fernsprecher lodged an appeal with the Finanzgericht (Finance Court), which set aside the abovementioned notices on the ground that Article 5(2) of the Council Regulation precluded such recovery. In the opinion of the Finanzgericht, the plaintiff could not be expected to detect the error committed by the customs authorities which was attributable to a misapplication of the provisions relating to the determination of the customs value of the relevant goods.

8. The Bundesfinanzhof, before which the Hauptzollamt had brought an appeal on a point of law, had doubts about whether the German authorities had the power to decide to effect post-clearance recovery without first referring the matter to the Commission, and about the interpretation given by the Finanzgericht of Article 5(2) of the Council Regulation. It therefore stayed the proceedings and referred the following two questions to the Court for a preliminary ruling :

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

10. The present case essentially involves two provisions:

11. By its first question the national court seeks essentially to ascertain whether under Article 4 of the Commission Regulation national authorities are required to request the Commission to take a decision on whether to effect post-clearance recovery of customs duties, where the amount of the duties uncollected is equal to or greater than ECU 2000, even if they consider that the conditions contained in Article 5(2) of the Council Regulation are not fulfilled.

12. The purpose of the Commission Regulation is to lay down the conditions under which Article 5(2) of the Council Regulation, that is to say the provision permitting recovery to be waived in certain cases, is to apply. It follows that Article 4 of the Commission Regulation does not cover a case in which the competent authorities are persuaded that the terms of Article 5(2) of the Council Regulation are not fulfilled and therefore consider themselves bound to effect recovery.

13. That interpretation is in conformity with the purposes of the Commission Regulation. The objective of conferring on the Commission a power of decision in regard to the post-clearance recovery of customs duties is to ensure the uniform application of Community law. That is likely to be jeopardized in cases where an application to waive post-clearance recovery is allowed, since the assessment which a Member State may make in taking a favourable decision is likely, in actual fact, owing to the probable absence of any appeal, to escape any review by means of which the uniform application of the conditions laid down in the Community legislation may be ensured. On the other hand, that is not the case where the national authorities proceed to effect recovery, whatever the amount in issue. It is then open to the person concerned to challenge such a decision before the national courts. As a result, it will then be possible for the uniformity of Community law to be ensured by the Court of Justice through the preliminary ruling procedure.

14. The reply to the first question must therefore be that Article 4 of Commission Regulation No 1573/80 of 20 June 1980 is to be interpreted as meaning that, when the amount of duties not collected is equal to or greater than ECU 2000, the national authorities are not required to request the Commission to take a decision on the possibility of not proceeding to effect post-clearance recovery of customs duties if they consider that the conditions laid down in Article 5(2) of Council Regulation No 1697/79 of 24 July 1979 are not fulfilled.

15. By its second question the national court asks what criteria should be applied in order to determine whether an error is reasonably detectable by the person liable within the meaning of Article 5(2) of the Council Regulation.

16. The Bundesfinanzhof is unsure, particularly as regards the validity of the position taken by the Finanzgericht according to which it is not necessary to require an importer to have more extensive knowledge than customs officials themselves.

17. hat position cannot be accepted. As the Commission and the Spanish Government have emphasized, to establish any such principle would have the consequence that it would be practically impossible to effect post-clearance recovery since the error will inevitably always have been committed by the official concerned failing to examine all the aspects of a factual or legal situation. Article 5(2) of the Council Regulation would be robbed of its purpose since it necessarily presupposes that the duties in question were not collected as a result of an error by the competent authorities themselves.

18. It should be observed, however, that is necessary to look specifically at all the circumstances of the case in order to determine whether or not the error was detectable by the trader in question.

19. In that regard, account must be taken in particular of the precise nature of the error, the professional experience of, and the care taken by, the trader.

20. As regards the precise nature of the error, the question to be determined each time is whether the rules concerned are complex or simple enough for an examination of the facts to make an error easily detectable. It should be stated that, in a case such as this, where the trader twice received confirmation that the erroneous view upon which the customs treatment was based was correct, the repetition of the error by the customs authority is evidence that the problem to be resolved was a complex one.

21. As far as the professional experience of the trader is concerned, the question to be determined is whether or not the trader involved is one whose activity essentially consists in import and export operations, and whether he already had some experience of trading in the goods in question, particularly whether he had in the past carried out similar transactions on which customs duties had been correctly calculated.

22. As regards the degree of care shown by the trader, it should be pointed out that as soon as he has doubts about the accuracy of the calculation of the customs value of the goods it is for the trader himself to make inquiries and seek the greatest clarification possible in order to ascertain whether his doubts are well founded or not.

23. It is for the national court to assess whether, having regard to the circumstances of the case before it, those criteria are satisfied.

24. The reply to the second question must therefore be that in order to determine whether there has been an error... which could not reasonably have been detected by the person liable as referred to in Article 5(2) of Regulation No 1697/79, regard must be had in particular to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised. It is for the national court to decide, on the basis of that interpretation, whether or not the error responsible for the non-collection of customs duties could have been detected by the person liable.

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

On those grounds, THE COURT (Fifth Chamber), in answer to the questions referred to it by the Bundesfinanzhof, by order of 24 January 1989, hereby rules:

(1) Article 4 of Commission Regulation (EEC) No 1573/80 of 20 June 1980, laying down provisions for the implementation of Article 5(2) of Council Regulation (EEC) 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, must be interpreted as meaning that, when the amount of the duties not collected is equal to or greater than ECU 2000, the national authorities are not required to request the Commission to take a decision on the possibility of not proceeding to effect post-clearance recovery of customs duties if they consider that the conditions laid down in Article 5(2) of Council Regulation (EEC) No 1697/79 of 24 July 1979 are not fulfilled.

(2) In order to determine whether there has been an error... which could not reasonably have been detected by the person liable as referred to in Article 5(2) of Council Regulation (EEC) No 1697/79 of 24 July 1979, regard must be had in particular to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised. It is for the national court to decide, on the basis of that interpretation, whether or not the error responsible for the non-collection of customs duties could have been detected by the person liable.

1 Language of the case: German.