Judgment of the Court (Sixth Chamber) 16 July 1992
In Case C-187/91, REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Première Instance, Neufchâteau, for a preliminary ruling in the proceedings pending before that court between
THE COURT (Sixth Chamber), composed of: F. A. Schockweiler, President of the Chamber, G. F. Mancini, P. J. G. Kapteyn, M. Diez de Velasco and J. L. Murray, Judges, Advocate General: C. Gulmann, Registrar: D. Triantafyllou, Administrator,
after considering the written observations submitted on behalf of: the Belgian State, by Serge Dufrene, of the Brussels Bar; Belovo, by Jean-Paul Hordies, of the Brussels Bar; the Commission, by Xénophon A. Yataganas, of its Legal Service, acting as Agent;
having regard to the Report for the Hearing,
after hearing the oral observations of the Belgian State, Belovo and the Commission at the hearing on 19 March 1992,
after hearing the Opinion of the Advocate General at the sitting on 24 June 1992,
gives the following
Judgment
Costs
1. By judgment of 10 July 1991, received at the Court Registry on 24 July 1991, the Tribunal de Première Instance (Court of First Instance), Neufchâteau, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 24 and 25 of Commission Regulation (EEC) No 3719/88 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products (OJ 1988 L 331, p. 1).
2. That question was raised in proceedings between the Belgian State and the Société Coopérative Belovo (Belovo), established in Bastogne, concerning a demand for payment of additional import levies on eggs originating in nonmember countries.
3. Belovo had requested and obtained from the Belgian authorities, for the period from 28 November 1988 to 21 September 1989, nine advance fixing certificates in respect of levies on imports of eggs originating in nonmember countries. On 3 October 1989 the authorities requested the return of five of the certificates, in accordance with the procedure laid down in Regulation No 3719/88, on the ground that Regulation (EEC) No 2771/75 of the Council of 29 October 1975 on the common organization of the market in eggs (OJ 1975 L 282, p. 49) does not permit the issue of advance fixing certificates in respect of levies on imports of eggs originating in nonmember countries. It is common ground that the Community rules in force at the material time did not permit the issue of the certificates. Belovo returned the certificates, as requested.
4. Belovo, bound by contracts made in August and September 1989, that is to say prior to the request for the return of the said certificates, and having obtained the documents needed for importation, placed the eggs in customs' warehouses as from October 1989. By two national judicial decisions, Belovo was authorized to import the eggs on payment of the levies at the rate current on the date stated on the advance fixing certificates returned.
5. The Belgian State established that Belovo had paid only the import levies referred to in the certificates which were lower than those calculated on the basis of the actual date of importation and claimed payment of the difference between the two amounts. In support of their claim, the Belgian authorities consider that Articles 24 and 25 of Regulation No 3719/88, which provide inter alia for the possibility of correcting errors, preclude the holders of certificates from relying on vested rights. Furthermore they consider that Belovo, a well-informed trader, could not have been misled by certificates vitiated by manifest irregularities.
6. In order to counter that claim, Belovo argued inter alia, before the Tribunal de Première Instance de Neufchâteau, that it had acted in good faith, and that it was not responsible for the erroneous issue of certificates which had prompted it to assume substantial obligations. Moreover, Regulation No 3719/88 did not exclude liability on the part of the agency issuing the certificates.
7. Articles 24 and 25 of Regulation No 3719/88 are drafted as follows:
8. The Tribunal de Première Instance de Neufchâteau stayed the proceedings and referred the following question 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 procedure and the written 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. It appears from the order for reference that the national court seeks to determine essentially whether, in the present circumstances, Articles 24 and 25 of Regulation No 3719/88 preclude Belovo from relying on a legitimate expectation, based on certificates which all parties agree should not have been issued, in order to refuse payment of additional import levies, and, if appropriate, to render the agency which issued the irregular certificates liable.
11. In that connection, it should be noted that Articles 24 and 25 of Regulation No 3719/88, expressly referred to in the questions from the national court, concern in particular the procedure to be followed where the accuracy of entries on the certificate is in doubt and do not preclude an action for damages brought, in accordance with national law, by the holder of such certificates against the issuing agency. However, those articles do not cover the potential financial consequences of withdrawing certificates which should not have been issued.
12. Moreover, it is not for the Court, when making a ruling under Article 177 of the EEC Treaty, to appraise the facts of the case; in response to a question, it is required to provide the national court with such interpretative information as may be necessary to enable it to decide the dispute (Case C-332/88 Alimenta v Doux [1990] I-2077). In that connection, the Court may deem it necessary also to consider rules of Community law to which the national court has not referred in its question. It is for the national court, however, to decide whether or not such rules, as interpreted by the Court, are applicable in the case brought before it (see inter alia Case C-315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10).
13. In that connection, the Advocate General has rightly observed that the rules enabling an appropriate reply to be given to the question referred are those 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 (OJ 1979 L 197, p. 1). The main proceedings concern essentially the amount of part of the import levies demanded from Belovo in respect of eggs which formed the subject-matter of a declaration made for customs purposes and entailing payment of such levies.
14. The purpose of Regulation No 1697/79 is, in particular, to Umit, for reasons of legal certainty, the possibility for the national authorities to take legal action to recover import and export duties after clearance (see inter alia Case 210/87 Padovani and Others v Amministrazione delle Finanze della Stato [1988] ECR 6177, paragraph 6).
15. Artide 5 provides as follows:
16. It follows from Article 5(2) of Regulation No 1697/79 that its application is conditional inter alia on the error made by the competent authorities not being reasonably capable of being detected by the person liable. The circumstances set out in point 5 of the national court's question relate to that condition.
17. In that connection, the Court has consistently held that it is for the national court to decide whether that condition has been satisfied, having regard to the nature of the error, the professional experience of the trader concerned and the degree of care which he exercised (see inter alia Case C-371/90 Beirafrio v Alfândega do Porto [1992] ECR I-2715, paragraph 21).
18. As regards the precise nature of the error, the question to be determined is whether the rules concerned are complex or, on the contrary, simple enough for an examination of the facts to make an error easily detectable. In a case such as this, where the trader has, in the course of several operations and over a long period of time, been issued with nine certificates each constituting confirmation that the view which subsequently proved to be erroneous was correct, and on which the contested payments were based, the repetition of the error by the customs authority is evidence both of the complex nature of the problem to be resolved (see inter alia Case C-64/89 Hauptzollamt Giessen v Deutsche Fernsprecher [1990] ECR I-2535, paragraph 20) and of lack of negligence on the trader's part. Furthermore, the fact that the imports occurred after the withdrawal of the certificates, but by virtue of contractual obligations entered into in good faith prior to the withdrawal, does not affect the consequences flowing from the assessment of the nature of the error.
19. As far as the professional experience of the trader is concerned, it is for the national court to determine 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 levies had been correctly calculated (see inter alia Case C-64/89 Deutsche Fernsprecher, cited above, paragraph 21).
20. In the light of the foregoing, the answer to the national court's question must be that Articles 24 and 25 of Commission Regulation (EEC) No 3719/88 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products do not preclude the holder of import licences from bringing an action for damages against the issuing agency, in accordance with national law, where it is agreed that those licences should not have been issued, in the course of which regard is had inter alia to the trader's legitimate expectations in respect of those licences. An action for post-clearance recovery of part of the import levies, such as that at issue in the main proceedings, falls within the scope of Article 5 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. It is for the national court to determine whether all the conditions prescribed for the application of Article 5(2) are fulfilled.
21. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, 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 (Sixth Chamber), in answer to the question submitted to it by the Tribunal de Première Instance, Neuf château, by judgment of 10 July 1991, hereby rules:
1 Language of the case: French.