Opinion of Advocate General

Mr President,

Members of the Court,

1. The preliminary ruling sought by the Tribunal d'Instance of the Seventh Arrondissement, Paris, relates to the interpretation of Article 5(2) 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 Hable for payment on goods entered for a customs procedure involving the obligation to pay such duties; and, in the alternative, Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties.

2. I refer to the Report for the Hearing for matters of detail but will briefly summarize the events giving rise to the dispute in the main proceedings.

3. The national court has asked this Court to give a preliminary ruling as to whether, in view of the circumstances invoked by the plaintiff in the main proceedings, namely the existence of a binding notice issued by the Munich Revenue Office classifying the goods in question under heading 84.55C and the absence of any objection from the French customs authorities regarding that classification (notwithstanding the fact that each import declaration expressly referred to the heading declared, next to the correct commercial description of the goods), the applicant is entitled to a waiver of post-clearance recovery of the duty at issue pursuant to Article 5(2) of Regulation No 1697/79 or, in the alternative, remission of import duties pursuant to Article 13 of Regulation No 1430/79.

4. That said, it should be noted as a preliminary point that Article 5(2) of Regulation No 1697/79 makes a decision by the competent authorities not to effect post-clearance recovery of the duties payable subject to the simultaneous fulfilment of three conditions: namely, the duties ... were not collected as a result of an error made by the competent authorities themselves which could not reasonably have been detected by the person liable, the latter for his part having acted in good faith and observed all the provisions laid down by the rules in force as far as his customs declaration is concerned. I would also point out that the Court has consistently held that that provision must be interpreted as meaning that if all the conditions laid down by [it] are fulfilled the person liable is entitled to the waiver of the recovery of the duty in question.

5. As regards point (a), I would observe at the outset that according to the literal wording of Article 5(2) only an error made by the actual authorities responsible for collection can be taken into account for the purposes of waiving recovery of the duty. However, such a restrictive interpretation was set aside by the Court itself which, in Mecanarte, held that any authority which, acting within the scope of its powers, furnishes information relevant to the recovery of customs duty and which may thus cause the person liable to entertain legitimate expectations must be regarded as a competent authority for the purposes of the provision in question, and that this applies in particular to the customs authorities of the exporting Member State which deal with the customs declaration.

6. I shall therefore now consider whether the fact that those authorities raised no objection regarding the customs heading indicated by the trader in question in relation to the goods concerned may be regarded as an error made by the competent authorities. As is apparent from the judgment in Foto-Frost, whilst it is true that, where duty has been calculated on the basis of unchecked particulars given in the customs declaration, the declaration may be subjected to subsequent verification and the amount of duty calculated rectified, it is also true that, if the post-clearance check does not disclose any information additional to that provided in the customs declaration, the failure to collect the duties is in principle attributable to an error by the customs authorities. In other words, for there to be an error on the part of the competent authorities which is relevant for the purposes of non-recovery, it is sufficient if those authorities, despite the size and number of the transactions carried out by the trader in question, fail to challenge the classification adopted by that trader, having regard to the information provided in the customs declaration.

7. Let us consider the second condition laid down in Article 5(2) of Regulation No 1697/79, namely that the error concerned must be one which could not reasonably have been detected by the person liable. In that connection, it should be borne in mind as a preliminary point that the Court has consistently held that it is incumbent on the national court to ascertain whether that condition is fulfilled, having regard to the nature of the error, the experience of the trader concerned and the diligence shown by him. However, the Court has laid down a number of criteria to be followed by the national court in so doing.

8. Finally, that brings us to the third condition, whereby the economic agent must have acted in good faith and observed all the provisions laid down by the rules in force regarding customs declarations. As is apparent from the relevant case-law of the Court, the declarant is required to provide the customs authorities with all the necessary information required by the Community legislation and by such national provisions as supplement or implement that legislation. For that purpose, as the Court itself has pointed out, it is certainly not permissible to call for anything other than the information which the person liable may reasonably possess or obtain, and therefore it is sufficient for such information, even if incorrect, to have been provided in good faith.

9. The conclusion which I have reached makes it unnecessary to consider whether, in a case like this one, the conditions laid down in Article 13(1) of Regulation No 1430/79 for the remission of duty are satisfied. However, for the sake of completeness and just in case the Court does not follow the line which I advocate, I think I should consider the matter. But not before emphasizing that an application for the remission of duties entered in the account but not paid under Article 13 of Regulation No 1430/79 can, in my opinion, be lodged at the same time as a request for non-recovery under Article 5(2) of Regulation No 1697/79. The two regulations just referred to do not in fact operate in the alternative but cover two different situations. There is thus no reason why a trader should not, by applications lodged on the same date, ask whether, in the event of non-recovery not being granted, there might be grounds for remission of the duties (which ought otherwise to be recovered).

10. In that connection, I would observe first that the present case is not one of the typical cases listed in Article 4 of Commission Regulation No 3799/86 of 12 December 1986, which make available the repayment or remission of import duties under Article 13 of Regulation No 1430/79. It is clear, therefore, that the procedure extends to case-by-case evaluation of other circumstances which may arise; however, the overall logic of the system seems to me to be such as to exclude any reliance on Article 13 in order to evade decisions to recover duties which were lawfully due but were not collected, except — specifically — in cases where those duties, if actually paid when due, would then have met the conditions for repayment. And it is undisputed that if Hewlett Packard France had declared the keyboards under the heading subsequently found to be correct, it would not have paid any duty since those goods enjoyed preferential treatment under a shared tariff ceiling.

11. In the present case, therefore, it only remains to be established whether the fact that the economic agent in question relied on binding information provided by the competent customs authorities of another Member State may constitute special circumstances.

12. In the light of the foregoing considerations, I suggest that the Court give the following answers to the questions referred to it by the Tribunal d'Instance of the Seventh Arrondissement, Paris:

1 Original language: Italian.

2 OJ 1979 L 197, p. 1.

3 OJ 1979 L 175, p. 1.

4 See Annex II to Council Regulation (EEC) No 3599/85 of 17 December 1985 applying generalized tariff preferences for 1986 in respect of certain industrial products originating in developing countries (OJ 1985 L 352, p. 1).

5 It should be noted that, at the material time, goods within heading 84.53B also qualified for a suspension of duties, but subject to a shared (annual) tariff ceding. That limit was reached for 1986, giving rise to reintroduction of the collection of duty (see Commission Regulation No 1236/87 of 4 May 1987, OJ 1987 L 177, p. 5) for transactions carried out during that year and settled after the tariff ceilings were exceeded: it is precisely for this reason that the recovery procedure initiated by the French authorities relates only to the imports made in 1986.

6 Sec the judgment in Case C-332/88 SA Alimenta [1990] ECR I-2077, paragraph 9.

7 Judgment in Case 35/85 Tissier [1986] ECR 1207, paragraph 9.

8 See, most recently, the judgment in Case C-348/89 Mecanarte [1991] ECR I-3277, paragraph 12.

9 Cited above, paragraph 22.

10 OJ 1990 L 160, p. 1.

11 Case 314/85 Foto-Frost [1987] ECR 4199, paragraph 24; see also the judgment in Case 378/87 Top Hit [1989] ECR 1359, paragraph 19.

12 Commission Directive of 17 December 1981 laying down certain provisions for implementing Council Directive 79/695/EEC on the harmonization of procedures for the release of goods for free circulation (OJ 1982 L 28, p. 38).

13 Emphasis added.

14 Sec most recently the judgment in Case C-187/91 Belovo [1992] ECR I-4937, paragraph 17.

15 Commission Regulation (EEC) No 1288/91 concerning the classification of certain goods in the customs nomenclature (OJ 1991 L 122, p. 11).

16 See judgment in Case C-64/89 Deutsche Fernsprecher [1990] ECR I-2535, paragraph 20.

17 Judgment in Belavo, cited above, paragraph 18.

18 Deutsche Fernsprecher, cited above, paragraph 21; see also Belavo, paragraph 19.

19 See Top Hit, cited above, paragraphs 22-26.

20 Mecanarte, cited above, paragraph 29.

21 OJ 1986 L 352, p. 19.