Opinion of Advocate General

Mr President,

Members of the Court,

1. Between 1982 and 1984 the two applicants, who operate as customs agents in the Netherlands, imported several consignments of honey originating in Jamaica. They presented the certificate provided for in the Lomé Convention to attest the Jamaican origin of these goods, so that the goods could be imported without payment of the normal customs duties.

2. Towards the end of 1984 the Commission conducted an investigation in Jamaica and discovered that certificates of origin had been drawn up incorrectly for several years. The Jamaican authorities themselves subsequently carried out an inquiry, at the end of which they informed the Commission on 5 December 1984, among other things, that the certificates of origin presented by the applicants had been issued improperly and that they had consequently been withdrawn.

3. The applicants claim that the Court should annul the decisions and submit four pleas in support of their case.

The period allowed for the Commission to reach a decision

4. When the applicants lodged their applications for remission of duties with the Netherlands authorities in 1985, the implementing regulation in force was Commission Regulation No 1575/80 laying down provisions for the implementation of Article 13 of the basic regulation, last amended by Commission Regulation No 945/83 (hereinafter the 1980 implementing regulation). With regard to decisions to be taken by the Commission, Article 5(2) provided that:

5. The 1980 implementing regulation was repealed with effect from 1 January 1987 and replaced by Commission Regulation No 3799/86 laying down provisions for the implementation of Articles 4a, 6a, 11a and 13 of the basic regulation (hereinafter the 1986 implementing regulation). The new regulation amended the previous rules in a number of respects. The most important amendment for the purposes of the present cases was that the period allowed to the Commission was extended to six months; see Article 8(2).

6. The applicants assert that the Commission was required to consider their applications for remission of duties on the basis of the time-limit rules that were in force when post-clearance recovery was carried out, in other words within the four-month period laid down in the 1980 implementing regulation. As the Commission had not reached a decision within that period, the Netherlands authorities were, in the opinion of the applicants, required to grant the applications and for that very reason the Commission's decision became superfluous and should therefore be annulled.

7. According to the case-law of the Court, substantive rules are usually interpreted as applying to situations existing before their entry into force only if there are sufficiently clear indications that that was indeed the effect sought, whereas the principle is exactly the reverse as regards procedural rules. Hence procedural rules are generally held to apply even to the examination of legal situations arising before they entered into force.

8. The question which arises in the present cases is whether there is a link between the relevant substantive and procedural rules such that the four-month rule laid down in the 1980 implementing regulation should apply. As to whether the relevant substantive and procedural rules form an indivisible whole, the question to be asked is not so much whether the relevant substantive and procedural rules are contained in different regulations or different sections of the same regulations but rather whether there is coherence between the substantive rules and the procedural rules, so that application of new procedural rules would have a direct or indirect impact on the content and scope of the substantive rules. There are no grounds for departing from the fundamental principle regarding the time at which procedural rules take effect unless it can be established that that principle is likely to have such an impact on the application of the substantive rules. The applicants have not demonstrated that this is so in the cases now before the Court. It is therefore necessary to apply the basic principle governing the time at which procedural rules take effect.

The statement of reasons for the Commission's decisions

9. The applicants maintain that the decisions do not meet the requirement, laid down in Article 190 of the EEC Treaty, that the reasons on which they are based must be stated. In their view, reference to the judgment of the Court in Joined Cases Van Gend & Loos and Bosman is insufficient for reasoning purposes and wrong in any event. The applicants consider that the Commission cannot simply refer to a judgment without indicating the reasons why that judgment is relevant and that in any case, on the actual substance, the Commission is wrong to consider that judgment relevant to the present case.

10. The statement of the grounds for the decisions contains a summary of the facts and law underlying the applications for remission of duties and concludes with the following considerations:

11. It is therefore necessary to examine whether, as the applicants contend, the reasons adduced are wrong in substance, in view of the existence of such great differences between the judgment in the Van Gend & Loos and Bosman cases and the present cases that that judgment cannot be cited in support of the argument that no special circumstances, within the meaning of Article 13, exist in the present cases.

12. The applicants' plea of insufficient reasoning must therefore be rejected.

Illegality of the decisions resulting from verifications carried out by the Commission in Jamaica

13. The applicants contend that the withdrawal of the certificates of origin is illegal in that it came about as a result of Commission investigations in Jamaica which were themselves illegal because they were conducted in breach of the rules of the Second Lomé Convention, and especially Article 25 of Protocol 1.

Breach of the rights of the defence

14. The applicants maintain that the procedure followed for the adoption of the disputed decisions did not comply with the guarantees established in this regard by Community law, considered inter alia in the light of Article 6 of the European Convention on Human Rights. The applicants observe that they did not have an opportunity to express their point of view directly to the Commission and that they did not have all the information of importance in the adoption of the disputed decisions.

15. It must be assumed that in the applications they lodged with the national authorities the applicants stated all the arguments that can be made for remission of the duties. The way in which those applications were subsequently treated was not such that the applicants need to be given an opportunity to advance fresh arguments. Indeed, during the oral procedure the applicants conceded that in the period between the submission of the applications and their processing by the Commission no new element emerged which could have been added to their arguments for the remission of duty. Moreover, there would have been no objection to the applicants' adding to the arguments contained in the applications, which they knew had been forwarded to the Commission. Such additional arguments might well have been justified, given the very long period between the lodging of the applications with the Netherlands authorities and their forwarding to the Commission.

16. In the light of the foregoing considerations, I consider that there are no grounds for upholding this plea of the applicants.

Conclusion

17. I therefore propose that the Court should dismiss the applications and order the applicants to pay the costs, the Kingdom of the Netherlands bearing its own costs.

1 Original language: Danish.

2 OJ 1979 L 175, p. 1.

3 OJ 1982 L 186, p. 1.

4 Article 13 was amended by Council Regulation No 3069/86 (OJ 1986 L 286, p. 1). It is now worded as follows:Import duties may be repaid or remitted in special situations other than those referred to in sections A to D, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned. It is common ground in these cases that the applications should be dealt with on the basis of Article 13, as worded in the 1982 regulation.

5 OJ 1980 L 161, p. 13, and OJ 1983 L 104, p. 14.

6 OJ 1986 L 352, p. 19.

7 See, for example, the judgments in Joined Cases 212/80 to 217/80 Amministrazione delle Finanze dello Stato v Salumi [1981] ECR 2735 and in Case 154/84 FKF v Hauptzollamt Berlin-Süd [1985] ECR 3165.

8 Salumi II judgment, cited in the preceding footnote, and Case 113/81 Reichelt v Hauptzollamt Berlin-Süd [1982] ECR 1957.

9 In my view, the applicants' reference to the Opinion of Advocate General Lenz in Case 148/87 Frydendahl Pedersen v Commission [1988] ECR 4993, which concerned the same rules as those at issue in the present cases, is irrelevant. The Court has not had occasion to rule on the question whether the 1986 implementing regulation had retrospective effect. This point had, however, been examined by the Commission and Advocate General Lenz. The Frydendahl Pedersen case differed in one essential respect from the present cases in that it related to an application lodged with the Commission before the entry into force of the 1986 implementing regulation. The applicant had maintained that the 1986 implementing regulation was illegal to the extent that it would apply retrospectively to all applications on which a decision had not been reached by 1 January 1987. The Commission and Advocate General Lenz agreed in principle with the applicant in considering that the new rules of the 1986 implementing regulation did not have retrospective effect in that case; they considered that the new rules did not affect the treatment of applications already lodged with the Commission before the regulation came into force.

10 Joined Cases 98/83 and 230/83 Van Gend & Loos and Expeditiebedrijf Wim Bosman v Commission [1984] ECR 3763.

11 Joined Cases 244/85 and 245/85 Cerealmangimi and Italgrani v Commission [1987] ECR 1303.

12 OJ 1980 L 347, p. 73.

13 Case 294/81 Control Data v Commission [1983] ECR 911.

14 See paragraph 9 in the Van Gend & Loos and Bosman judgment and paragraph 17 in the Control Data judgment.

15 The first judgment was delivered in Case 49/88 [1991] ECR I-3187 and the second in Joined Cases 48/90 and 66/90 [1992] ECR I-565.