Opinion of Advocate General
Mr President,
Members of the Court,
1. The Belgian State, represented by the Minister for Economic Affairs, has brought proceedings before the Tribunal de Première Instance de Neufchâteau against Société Coopérative Belovo in which it seeks payment of approximately BFR 20 million in respect of outstanding import levies.
2. The background to the proceedings is as follows:
3. The request for back payment relates to import levies in respect of imports effected on the basis of four of the nine import licences.
4. Belovo lodged a claim during the main proceedings for damages of BFR 5 million on the ground that the negligent conduct of the Belgian authorities in issuing the advance fixing certificates resulted in the company's incurring losses by reason, inter alia, of expenditure on transport and storage in customs warehouses.
5. The parties to the main proceedings agree that the issue of the advance fixing certificates was not authorized under the applicable Community law. They also agree that the amount in respect of which back payment is requested has been correctly calculated. The dispute between the parties therefore concerns only the issues whether the request for back payment is objectively justified and whether Belovo's claim for damages can be upheld.
6. The Belgian Government argues that the revocation on 3 October 1989 was authorized under Articles 24 and 25 of the implementing regulation and that those provisions preclude Belovo from acquiring vested rights on the basis of the advance fixing certificates. In addition, it argues that those provisions preclude Belovo from bringing any claim for damages against the authorities. In support of its contentions, the Belgian Government also analyses the nature of import levies. It points out that such levies are neutral and are used solely to offset differences between prices in the exporting countries and prices within the Community, a fact which, in its view, implies that Belovo should not be allowed to rely on the advance fixing of the levies in question.
7. Belovo contends that it acted in good faith in relying on the advance fixing certificates which were issued and that the issue of those certificates conferred on it certain vested rights. The company also argues that the provisions in the regulation referred to by the Belgian Government cannot in any event preclude it from bringing a claim for damages against the Belgian State.
8. The Tribunal de Première Instance de Neufchâteau has referred the following question to the Court for a preliminary ruling:
9. This limitation, however, raises difficulties in two regards.
10. I wish in the following first of all to examine the scope of Articles 24 and 25 of the implementing regulation.
11. I then wish to consider the relevance of one of the arguments put forward by the Commission, according to which the advance fixing certificates must be treated as null and void.
12. Finally, I wish to examine whether, as submitted by Belovo in the course of its submissions to the Court, the main proceedings ought to be decided on the basis 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 for a customs procedure involving the obligation to pay such duties (hereinafter the regulation on post-clearance recovery).
The scope of Articles 24 and 25 of the implementing regulation
13. The two articles provide as follows:
14. I have already referred to the Belgian Government's contentions that those provisions entitle the authorities to revoke licences which have been wrongly issued, that such a right precludes parties whose licences have been withdrawn from successfully arguing that the revocation infringes vested rights, and that it also means that the authorities cannot be held liable to pay compensation in respect of errors which may have been made when the licences were issued.
15. The Commission has submitted that the provision concerns only minor inaccuracies which may be the subject of a corrigendum .... However, whether the provision contains a more or less extensive scope for revocation is not, in my opinion, a determinant factor in the present case.
16. The crucial fact is that the provision contains nothing more than conditions and procedural details for the revocation of licences.
17. It must for those reasons be held that Articles 24 and 25 of the regulation do not determine the issues whether the Belgian authorities are entitled to demand back payment of import levies and whether Belovo can succeed in its claim for damages.
The Commission's view that the advance fixing certificates are null and void
18. The Commission's view in the case is straightforward. The advance fixing certificates were quite clearly unauthorized under the applicable Community law. They are for that reason null and void. Since they never existed, they cannot form the basis for either rights or obligations. Belovo must in any event pay the import levies applicable on the dates on which the imports were effected. If the conduct of the Belgian authorities resulted in loss for Belovo, that is a matter which is of no concern to the Community and must be resolved in accordance with Belgian law.
19. It would in my view be incorrect to follow the Commission's line of thought. According to the case-law of the Court, only measures which exhibit particularly serious and manifest defects may be deemed to be nonexistent. The Court has indicated that this result is necessary for evident reasons of legal certainty.
20. The fundamental problem in the case is whether regard for Belovo's right to legal certainty can restrict the right of the Belgian authorities to demand back payment of the import levies owed by the company where it is established that the advance fixing certificates were invalid.
21. It can accordingly be held that the request for back payment in the present case must be determined in accordance with the regulation on post-clearance recovery, provided that that regulation is applicable, and that the request must, in the event that that regulation is inapplicable, be determined in principle pursuant to national law, but in such a way that certain general principles of Community law are complied with.
The scope of Council Regulation No 1697/79 on post-clearance recovery
22. As already mentioned, Belovo argued in its submissions before the Court that the back payment of import levies requested is covered by the regulation on post-clearance recovery and that Article 5 of that regulation implies that no such recovery can be made.
23. It is first of all necessary to examine whether that regulation is applicable in the present case.
24. It is now necessary to examine whether Belovo is correct in its contention that post-clearance recovery is excluded under Article 5.
25. It is in my opinion beyond doubt that Belovo is incorrect in its contention that the present case is covered by Article 5(1), as the company did not receive either a proper prior decision from the Belgian authorities or any other form of information ... which is binding.
26. The question to be addressed is therefore whether the conditions set out in Article 5(2) have been satisfied.
27. Belovo claims that it acted in good faith and that it could not reasonably have been aware that the certificates had been unlawfully issued.
28. Against this, however, it is in my opinion necessary to mention the following facts.
29. It is ultimately a matter for the national court to determine whether the issue of the advance fixing certificates was an error which Belovo could not reasonably have been expected to detect and whether it acted in good faith, account thereby being taken, inter alia, of the nature of the error, Belovo's experience and the degree of care exercised by the company.
30. I have already mentioned that Articles 24 and 25 of the implementing regulation do not preclude Belovo from being awarded damages for the loss suffered by the company as a result of the allegedly blameworthy conduct on the part of the Belgian authorities.
Conclusion
31. I accordingly propose that the Court reply as follows to the question submitted by the Tribunal de Première Instance de Neufchâteau:
1 Original language: Danish.
2 OJ 1988 L 331, p. 1.
3 Regulation (EEC) No 2771/75 of the Council of 29 October 1975, OJ 1975 L 282, p. 49.
4 It appears from the documents relating to the main proceedings that the contract was finally concluded between 4 and 8 September 1989 and that in any event two of the import licences under which the eggs were imported were not issued until 20 and 21 September 1989.
5 So far as concerns the remaining five licences, it can be confirmed that three of these were used for imports prior to revocation and that the last two, which were covered by the revocation, were not used.
6 I do not intend to attach any major importance in what follows to this last argument, which the Belgian Government bases on the Court's judgment in Case 17/67 Neumann v Hauptzollamt Hof [1967] ECR 441. It is obvious that advance fixing can be of immense significance to traders when making their arrangements and that a failure to comply with advance fixing can have far-reaching economic consequences for traders. In this context it would appear incorrect to claim on the basis of an analysis of the nature of advance fixing and import levies that it can never be justified on grounds of legal certainty to protect the rights of traders in cases where it is established that advance fixing certificates have been wrongly issued.
7 OJ 1979 L 197, p. 1.
8 This view is supported to some extent by the 17th recital in the preamble to the regulation, according to which: ... in the interest of sound administration, licences or certificates and extracts therefrom may not be amended after issue; ..., however, in cases of doubt relating to an error attributable to the issuing agency or to obvious inaccuracies and concerning the items appearing on the Učence or certificate or extract, a procedure should be introduced whereby inaccurate licences or certificates or extracts may be withdrawn and corrected documents issued.
9 See the judgment of the Court in Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005, at paragraph 10 or which the Court stated that:With regard to the arguments that the decision ... is nonexistent, it is necessary to point out that under Community law, as under the national laws of the various Member States, an administrative measure, even though it may be irregular, is presumed to be valid until it has been properly repealed or withdrawn by the institution which adopted it. If a measure is deemed to be nonexistent, the finding may be made, even after the period for instituting proceedings has expired, that the measure has not produced any legal effects. For reasons of legal certainty which are evident, that classification must conscquendy be restricted under Community law, as under the national legal systems which provide for it, to measures which exhibit particularly serious and manifest defects. Reference is also made to the Opinion delivered in that case, in which Advocate General Mischo stressed the limited scope of nonexistence (see in particular p. 1019).
10 See paragraph 6 of the Court's judgment in Case 210/87 Padovani and Others v Amministrazione delle Finanze dello Stato [1988] ECR 6177 and also the second recital in the preamble to Regulation No 1697/79, according to which the post-clearance recovery of import duties or export duties involves some degree of prejudice to the certainty which persons liable for payment have the right to expect from official acts having financial consequences; ... it is therefore appropriate to limit the possible scope of action of the competent authorities in this field ....
11 [1988] ECR 2213.
12 The Court also ruled at paragraph 23 of that judgment that a wrongful act on the part of the Commission or its officials, and likewise a practice of a Member State which does not conform with Community rules, is not capable of giving rise to legitimate expectations on the part of an economic operator who benefits from the situation thereby created (see judgments of 16 November 1983 in Case 188/82 Thyssen [1983] ECR 3721 and of 15 December 1982 in Case 5/82 Maizena [1982] ECR 4601. I wish only to point out here that I find this too far-reaching.
13 The Court stated as follows at paragraph 19:It is apparent from a comparative examination of the relevant provisions of national law that it is not possible to identify principles common to the laws of the Member States or generally recognized by those laws from which a general principle of Community law requiring national authorities to refrain from rectifying an insufficient payment of Community levies after the expiry of a uniform period of time or in the event of an error attributable to the national authorities could be deduced.
14 The Court defined this in the following manner at paragraphs 22 and 24 of its judgment in Padovani:In cases where national law, which is applicable as regards the detailed rules and condiûons for recovery, contained a principle protecting the legitimate expectations of traders, the Court has taken the view that Community law does not preclude the application of such a principle of national law to prevent the recovery of such debts with regard to traders acting in good faith, provided, however, that the application of national law does not affect the scope and effectiveness of Community law and is not discriminatory in relation to procedures for dealing with similar but purely national disputes (Case 265/78 Ferwerda v Produktschap voor Vee en Vlees [1980] ECR 617 and Joined Cases 205/82 to 215/82 Deutsche Milckkontor and Others v Germany [1983] ECR 2633). Conversely, if the conditions and detailed rules of national law applied by the national authorities for the recovery of Community debts are the same as those applied by those authorities in comparable cases concerning purely national debts, it may not in principle be considered that those conditions and rules are contrary to the obligations of the naúonal authorities to implement Community rules within their territory and therefore impair the effectiveness of Community law (see Cases 205/82 to 215/82 Deutsche Milchkontor, cited above).
15 See Case C-348/89 Mecanarte v Chefe do Serviço da Conferência Fina! da Alfândega, Oporto [1991] ECR I-3277, particularly paragraphs 20 and 22.
16 See Case C-371/90 Beirafrio v Alfândega äo Pono [1992] ECR I-2715.
17 [1987] ECR 4199, paragraph 22.
18 [1990] ECR I-2535.
19 Sec Regulation (EEC) No 2771/75 of the Council of 29 Ocrober 1975 (OJ 1975 L 282, p. 49), Articles 3 and 8 of which contain provisions on fixed and variable import levies respectively. As already pointed out, it is clear that the regulation does not make it possible for these to be fixed in advance.