Opinion of Advocate General

Mr President,

Members of the Court,

1. The questions on which a preliminary ruling is sought in these proceedings concern the interpretation of Article 5(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 or a customs procedure involving the obligation to pay such duties.

2. Beirafrio — Indústria de Produtos Alimentares, Lda (Beirafrio) sought to import several consignments of frozen hake from Chile and applied to the Customs Tariff Nomenclature and Policy Division of the Directorate General for Customs for information as to the rates of customs duties in force under the generalized preference scheme in respect of that product. That division gave notice by telex that the rate applicable to frozen hake from Chile was 6%.

3. The national court's first question seeks to establish whether such information includes details of the rates of customs duties in force.

4. The relevant Portuguese legislation at the material time provided that the customs authorities were bound only by answers given in response to prior inquiries concerning the tariff classification of goods. In view of the wide discretion enjoyed by the Member States in that regard, there is no basis for the plaintiff's view that, since the determination of the applicable rate of customs duties can often prove to be a very complex matter, not only information concerning tariff classification but also information concerning rates of duty may come within the category of binding information.

5. The second question asks who, for the purposes of the same provision, are the competent authorities and, in particular, whether the central customs authorities are to be regarded as such or only the national body entrusted by internal law with the task of giving binding information. The third question raises the issue whether the legislation of a Member State may limit the type of information that is to be treated as binding and whether such information must be given in writing.

6. Finally, the fourth question asks the Court to rule whether the only information to be regarded as binding information which precludes recovery of duties is information containing an error that could not reasonably have been detected by the person liable.

7. In the light of the foregoing considerations, I am of the opinion that the Court should reply as follows to the questions submitted to it by the Tribunal Fiscal Aduaneiro do Porto:

1 Original language: Italian.

2 OJ 1979 L 197, p. 1.

3 OJ 1990 L 160, p. 1.

4 Judgment in Case C-64/89 Hauptzollamt Giessen v. Deutsche Fernsprecher [1990] ECR 2535, paragraph 24. 4 — See for example its judgments in Case 161/88 Binder [1989] ECR 2415 and CAsc C-80/89 Erwin Beim [1990] ECR I-2659.