CELEX: 62003CJ0499
Appeal
Common Customs Tariff
Subsequent recovery of import duties
Waiver of duties to be recovered
Conditions
Article 220(2)(b) of Regulation (EEC) No 2913/92
Error of the customs authorities
Detectable error
Combined nomenclature
Remarks
Scope

By their appeal Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar-Produkte mbH (‘Biegi’ and ‘Commonfood’,
referred to together as ‘the appellants’) request the Court to set aside the judgment of the Court of First Instance of the
European Communities of 17 September 2003 in Joined Cases T‑309/01 and T‑239/02
Biegi Nahrungsmittel and Commonfood
v
Commission
[2003] ECR II‑0000 (‘the judgment under appeal’), by which that Court, first, dismissed Biegi’s application for partial annulment
of Commission Decision C (2001) 2533 of 14 August 2001 (REC 4/00) finding it appropriate to make subsequent entry in the accounts
of the import duties not charged in respect of the importation of poultrymeat from Thailand during the periods from 13 to
18 July and 4 to 22 September 1995 and, second, dismissed Commonfood’s application for annulment of Commission Decision C
(2002) 857 of 5 March 2002 (REC 4/01) finding it appropriate to make subsequent entry in the accounts of the import duties
not charged in respect of the importation of poultrymeat from Thailand on 24 July 1995 (‘the contested decisions’).
Legal context
The Court of First Instance stated in paragraph 1 of the judgment under appeal:
‘1
Article 3 of Council Regulation (EC) No 774/94 of 29 March 1994 opening and providing for the administration of certain Community
tariff quotas for high quality beef, and for pigmeat, poultrymeat, wheat and meslin, and brans, sharps and other residues
(OJ 1994 L 91, p. 1) opened, as from [1 January 1994], a Community tariff quota of an annual total volume of [15 500] tonnes
for poultrymeat falling within CN codes 0207 41 10, 0207 41 41 and 0207 41 71. Within that quota volume, the relevant duty
under the Common Customs Tariff was fixed at 0%. That same annual Community quota volume at zero duty was maintained by Article
1 of Commission Regulation (EC) No 2198/95 of 18 September 1995, amending Regulation No 774/94 (OJ 1995 L 221, p. 3), which
applied, in accordance with Article 2 thereof, as from 1 July 1995.’
Article 1 of Commission Regulation (EC) No 1431/94 of 22 June 1994 laying down detailed rules for the application in the poultrymeat
sector of the import arrangements provided for in Regulation (EC) No 774/94 (OJ 1994 L 156, p. 9), which, in accordance with
Article 8, entered into force on 26 June 1994, reads:
‘All imports into the Community under the tariff quotas opened in Articles 3 and 4 of Regulation … No 774/94 of products in
the groups referred to in Annex I to this Regulation shall be subject to the presentation of an import licence.
The quantities of products to which these arrangements apply and the rate of reduction in the levy shall be those listed for
each group in Annex I.’
In Annex I to Regulation No 1431/94, a rate of levy of 0% was applied in respect of up to 5 100 tonnes per annum of chicken
meat under CN codes 0207 41 10, 0207 41 41 and 0207 41 71 coming from Thailand (Group 2). The same rate of levy was applied
to an annual quantity of 7 100 tonnes of chicken meat, falling under those CN codes, coming from Brazil (Group 1) and to an
annual quantity of 3 300 tonnes of chicken meat coming from other non-member countries (Group 3).
Article 1 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common
Customs Tariff (OJ 1987 L 256, p. 1) established a new goods nomenclature called the ‘combined nomenclature’ or, in abbreviated
form, ‘CN’. The combined nomenclature appears in Annex I to that regulation, in which the rates of duty applicable and other
required information are also fixed.
Commission Regulation (EC) No 1359/95 of 13 June 1995 (OJ 1995 L 142, p. 1) amended Annexes I and II to Regulation (EEC) No
2658/87 and repealed Regulation (EEC) No 802/80. In accordance with Article 3 of Regulation No 1359/95, it entered into force
on 1 July 1995.
In its version thus amended, the combined nomenclature contained, in Part Three ‘Tariff Annexes’, Section III ‘Quotas’, an
Annex 7 headed ‘WTO tariff quotas to be opened by the competent Community authorities’. The following appears under Order
No 18 in that annex:
Order No
CN code
Description
Quota quantity
Rate of duty (%)
Other terms and conditions
…
…
…
…
…
…
0207 41 100207 41 410207 41 71
Cuts of fowls of the species
Gallus domesticus
, frozen:BonelessBreasts and cuts thereofOther
15 500 t

Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992
L 302, p. 1, ‘the CCC’) provides:
‘2.

… subsequent entry in the accounts shall not occur where
…
(b)
the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities
which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good
faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration’.
Under Article 871 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of
Regulation No 2913/92 (OJ 1993 L 253, p. 1):
‘… where the customs authorities either consider that the conditions laid down in Article 220(2)(b) of the Code are fulfilled
or are in doubt as to the precise scope of the criteria of that provision with regard to a particular case, those authorities
shall submit the case to the Commission, so that a decision may be taken in accordance with the procedure laid down in Articles
872 to 876.’
Under Article 873 of that regulation:
‘After consulting a group of experts composed of representatives of all Member States, meeting within the framework of the
Committee to consider the case in question, the Commission shall decide whether the circumstances under consideration are
or are not such that the duties in question need not be entered in the accounts.’
Facts of the dispute
The facts giving rise to the dispute are set out as follows in paragraphs 8 to 18 of the judgment under appeal:
‘8
… Biegi … and Commonfood … are German companies, linked with one another, operating in the poultrymeat trade. The [appellants]
are among the main importers of [chicken meat] in Germany.
By a decree of 29 June 1995 (known as “Eilverteiler”), the German Federal Minister of Finance amended the working tariff of
the German customs authorities by inserting, inter alia, the tariff quota K 4047 (chicken meat) at zero duty as from 1 July
1995. That quota corresponds to CN codes 0207 41 10, 0207 41 41 and 0207 41 71 referred to above. The Eilverteiler did not
contain any indication as to the requirement of an import licence for the importation of products falling within the tariff
quota abovementioned.
During the period from 13 to 18 July 1995 and from 4 to 22 September 1995, Biegi declared the importation, in various consignments,
of frozen chicken pieces (CN Code No 0207 41 10) originating in Thailand. On 24 July 1995, Commonfood declared the importation,
in various consignments, of frozen chicken pieces under the same CN Code originating in Thailand. The [appellants] did not
attach import licences to their customs declarations.
However, following the amendment of the German customs authorities’ working tariff introduced by the Eilverteiler, the competent
customs office used the Community tariff quota referred to above and allowed the [appellants] the benefit of exemption from
customs duties.
During August 1995, the [appellants], having had doubts as to the duties applied at the time of the customs clearance operations
of July 1995, telephoned the Federal Ministry of Finance and the central service for monitoring tariff quotas, through the
intermediary of their manager responsible for the management of import licences, in order to obtain clarifications as to the
system applicable to imports of the products in question. Initially, the officials of whom enquiry was made stated by telephone
that the duties applied were correct even without the presentation of an import licence in support of the customs declaration.
The [appellants] then asked for confirmation of that information in writing.
However, the written response of the German customs administration, sent to the [appellants] by letter of 22 August 1995,
indicated that use of the quota required the presentation of an import licence in support of the customs declaration. On the
same day, the Federal Minister for Finance amended the working tariff of the German customs authorities with retrospective
effect. That amendment had the effect of making it necessary, as from 1 July 1995, to present an import licence when using
the tariff quota in question.
By two amending tax decisions, adopted on 12 and 13 August 1996, the competent customs office, namely the Hauptzollamt Bremen-Freihafen,
then undertook post-clearance recovery of the import duties, totalling DEM 222 116.06 in respect of Commonfood’s imports (decision
of 12 August 1996), and DEM 259 270.23 in respect of Biegi’s imports, of which DEM 218 605.64 related to the imports of July
1995 and DEM 40 664.59 to the imports of September 1995 (decision of 13 August 1996).
Relying on their good faith, the error on the part of the German authorities and the fact that the latter was undiscoverable,
the [appellants] claimed that the import duties should not be taken into account post-clearance.
Their claims having been rejected by the competent customs office on 30 July 1997, the [appellants] referred the matter to
the Finanzgericht Bremen (Germany). The minutes of the hearing of 14 December 1999 show that, after investigating the matter,
that court took the view that Biegi’s action had little chance of success in relation to its customs declarations of September
1995, as Biegi had been duly informed of the exact legal situation by the German customs administration’s letter of 22 August
1995, referred to above. The Finanzgericht Bremen therefore recommended to Biegi that it should consider withdrawing its action
in relation to those declarations.  Regarding the customs declarations of July 1995, however, the court took the provisional
view that it was possible to grant the [appellants] protection of their legitimate expectations for the purposes of Article
220(2) of the CCC, and suggested to the competent customs office that it find out whether it was possible to withdraw the
amending tax decisions of 12 and 13 August 1996, referred to above, in relation to the declarations in question.
Pursuant to Article 871 of Commission Regulation (EEC) No 2454/93 … the Federal Republic of Germany asked the Commission,
by letters of 2 August 2000 and 17 April 2001, to decide under Article 220(2)(b) of the CCC whether it would be justifiable
to waive retrospective accounting for the import duties in the administration’s disputes with Biegi and Commonfood.
Taking the view that the circumstances did not reveal an error by the customs authorities themselves, not detectable by an
operator acting in good faith within the meaning of Article 220(2)(b) of the CCC, the Commission decided, by decisions adopted
on 14 August 2001 (Case T-309/01) and 5 March 2002 (Case T-239/02) … that the import duties forming the subject-matter of
the Federal Republic of Germany’s requests, referred to above, should be taken into account.’
The actions before the Court of First Instance and the judgment under appeal
By applications lodged at the Registry of the Court of First Instance on 12 December 2001 and 8 August 2002, the appellants
brought actions for the annulment of the contested decisions.
In support of their applications, they relied on three pleas in law: first, infringement of Article 220(2)(b) of the CCC;
second, infringement of the principle of proportionality; and, third, infringement of the principles of sound administration
and equal treatment.
By the judgment under appeal – Cases T‑309/01 and T‑239/02 having been joined – the Court of First Instance dismissed the
actions in their entirety, rejecting as unfounded all the appellants’ pleas in law.
On the first plea in law, the Court of First Instance considered, in paragraph 83 of the judgment under appeal, that the Commission
had been right to take the view that the second of the cumulative conditions laid down by Article 220(2)(b) of the CCC, namely
that the error of the customs authorities could not have been detected by experienced operators, had not been fulfilled in
this case, and that making subsequent entry in the accounts of the import duties for the disputed imports had been justified.
To reach that conclusion, the Court of First Instance, after recalling the case-law applicable, found, in paragraph 56 of
the judgment under appeal, that it was common ground that two errors had been made by the German customs authorities, namely
the issue of an erroneous version of the Eilverteiler and the clearance of the goods imported by the appellants in July 1995
with the granting of the tariff preference without presentation of an import licence.
On the other hand, the Court of First Instance rejected the appellants’ claim of a further error, consisting in the alleged
communication to their manager Mr Steiner by an official of the central service for monitoring tariff quotas of inaccurate
information over the telephone before 13 July 1995, that is, before the disputed imports. The Court found, in paragraphs 58
and 59 of the judgment under appeal, that, quite apart from its late production and the question of its relevance, which was
disputed by the Commission, that telephone information was not in any way demonstrated by the documents in the case-file.
The Court of First Instance then found that the rules applicable were not complex, observing in paragraph 63 of the judgment
under appeal that it is clear from Article 1 of Regulation No 1431/94 that every importation carried out in the context of
the long-term tariff quota at issue is subject to presentation of an import licence.
The Court of First Instance observed, moreover, in paragraphs 65 to 67 of the judgment under appeal, that Regulation No 1359/95
introducing a new version of the combined nomenclature for goods applicable from 1 July 1995 set out, in Annex 7, a list of
World Trade Organisation (WTO) tariff quotas to be granted by the competent Community authorities, and that the references
in that list to other rules of customs law were of declaratory value only. Regulation No 1359/95 thus did not open from 1
July 1995 a new preferential tariff quota claiming to be separate from that of Regulation No 774/94, as amended by Regulation
No 2198/95.
The Court of First Instance also took into account that the competent customs authorities had not persisted in their error
but corrected it within a very short period, namely a month after making it.
The Court of First Instance further observed, in paragraphs 70 and 71 of the judgment under appeal, that the appellants fell
into the category of experienced economic operators and had been aware of the importance of the import licence in order to
qualify for the long-term tariff quota.
Finally, to reach the conclusion that the appellants had not shown the care they should have shown, the Court of First Instance
considered, in paragraph 75 of the judgment under appeal, that an economic operator whose business essentially consists of
import and export transactions and who already has some experience in that field must, by reading the relevant issues of the
Official Journal, acquaint himself with the Community law applicable to the transactions he undertakes. It concluded that
such an operator cannot, in order to determine the applicable rate of duty, rely solely on the information in a national working
tariff. The Court further considered, in paragraphs 76 to 81 of the judgment under appeal, that the appellants could also
not rely on mere information over the telephone or claim not to have had the necessary time to write to the competent authorities
to ask them to clarify the legal position concerned.
In rejecting the second plea in law, the Court of First Instance held, in paragraph 88 of the judgment under appeal, that
in this case, since the conditions for applying Article 220(2)(b) of the CCC were not met, the fact that the contested decisions
made subsequent entry in the accounts of the duties in respect of the disputed imports could not in itself constitute an infringement
of the principle of proportionality.
In rejecting the third plea in law, the Court of First Instance considered, in paragraphs 93 and 96 of the judgment under
appeal, that the claim of infringement of the principle of sound administration was not supported in any way, and that the
claim of infringement of the principle of equal treatment was irrelevant, as the situations referred to by the appellants
in support of that claim were not comparable.
Forms of order sought by the parties
Biegi and Commonfood claim that the Court should:
–
set aside the judgment under appeal;
–
annul in part Commission Decision C (2001) 2533 of 14 August 2001 (REC 4/00), in so far as it finds that it is appropriate
to make subsequent entry in the accounts of import duties amounting to DEM 218 605.64;
–
annul Commission Decision C (2002) 857 of 5 March 2002 (REC 4/01) finding that it is appropriate to make subsequent entry
in the accounts of import duties amounting to DEM 222 116.06;
–
order the Commission to pay the costs.
The Commission contends that the Court should:
–
dismiss the appeal;
–
order the appellants to pay the costs.
The appeal
In support of their appeal, the appellants put forward two pleas in law, infringement of Article 220(2)(b) of the CCC and
procedural error.
The Commission argues that those pleas are inadmissible and, in the alternative, that they are unfounded.
Infringement of Article 220(2)(b) of the CCC
Arguments of the parties
The appellants complain that the Court of First Instance, in dismissing their applications on the ground that the error of
the customs authorities had been detectable by them, exaggerated the requirements of care on the part of economic operators
and failed to appreciate the complexity of the applicable rules.
According to the appellants, Article 220(2)(b) of the CCC must be interpreted, in accordance with the case-law of the Court,
in the light of the purpose of that provision, which is to protect the legitimate expectation of the person liable that all
the factors on which the decision whether or not to proceed with recovery of customs duties is based are correct (Case C‑251/00
Ilumitrónica
[2002] ECR I‑10433, paragraph 39). While, according to the case-law, the character of the error depends on the complexity
of the rules in question and the period of time during which the authorities persisted in their error, such a period constitutes
only a mere indication, not a separate condition necessary for the error to be regarded as not detectable. In the present
case, the error made by the two competent German departments was a consistent and repeated one. The complexity of the rules
derives from the application of several sets of rules which combine without specifying clearly how, and reading the
Official Journal of the European Communities
is not sufficient to identify specifically the applicable law.
The appellants submit that, at the time when they took their decisions, the Eilverteiler made no mention of any obligation
to produce an import licence and referred to Regulation No 1359/95, the annex to which, under order number 18 concerning the
new WTO tariff quotas concerned, did not contain any remarks in column 6, whereas for most other tariff quotas that column
specified that qualification for those quotas was subject to the conditions laid down by the relevant Community provisions.
It was that omission under order number 18 which led the competent German authorities and the appellants to conclude that
the two tariff quotas for poultrymeat determined in the context of the agreements reached in the Uruguay Round of multilateral
negotiations (1986-1994), concluded on behalf of the European Community, as regards matters within its competence, by Council
Decision 94/800/EC of 22 December 1994 (OJ 1994 L 336, p. 1), were tariff quotas which were not subject to the production
of import licences.
In the appellants’ view, the Court of First Instance erred in its assessment of the facts in regarding as short the period
of nearly two months during which the highest German customs authorities were mistaken in their rule-making activity. That
such authorities made that error suffices to show that it was not detectable by experienced operators, especially as it related
to new tariff quotas which were not covered by earlier Community provisions.
As to their obligations of care, the appellants submit that it was precisely their repeated questions to the various departments
concerned, relating solely to the need to produce an import licence, which induced the customs authorities to correct the
error in the Eilverteiler. As regards the Court of First Instance’s assertion that the appellants had had enough time to write
to the Commission, they refer to their observations made in the reply they submitted at first instance. They add that it is
for the customs authorities of the Member States to implement customs law and that Article 220(2) of the CCC would be deprived
of effect if undertakings had to apply to the Commission for information.
According to the Commission, this first plea is inadmissible, since it constitutes essentially a mere repetition of the pleas
and arguments submitted to the Court of First Instance or relates to points of fact. In so far as it relates to tenders of
evidence which the Court of First Instance did not think it necessary to examine, the appeal concerns a point of fact and
is really a mere repetition of the application. Such a repetition should also be noted as regards the argument in the appeal
as to the complexity of the rules, the impossibility of detecting the customs authorities’ errors in certain cases, and the
undertakings’ obligation of care. The complaint as to the incorrect assessment by the Court of First Instance of the circumstances
which led it to regard as short the period during which the error had been made concerns an assessment of facts.
The Commission submits, in the alternative, that the plea of infringement of Community law is unfounded. It points out that
the
Ilumitrónica
judgment relied on by the appellants concerned an error of the Turkish authorities which continued for more than 20 years
and legislation which was more complex, as it was scattered and predated the CCC. It also concerned the Agreement establishing
an Association between the European Economic Community and Turkey, signed in Ankara on 12 September 1963 by the Republic of
Turkey of the one part and the Member States of the EEC and the Community of the other part and concluded, approved and confirmed
on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963 (Journal Officiel 1964, 217, p. 3685), the relevant
decisions of the Association Council established by that agreement not having been published in the
Official Journal of the European Communities
. There was no comparison between the complexity of that case and that of the present case.
The Commission submits that it has not been shown that the error was not detectable, since the appellants do not substantiate
their allegations that the German customs authorities on several occasions confirmed over the telephone that an import licence
was not required. The complexity of the rules cannot be relied on in the present case, as the obligation to produce such a
certificate in order to qualify for the tariff quotas, in existence for over a year at the time of the contested imports,
could manifestly not be called into question by Regulation No 1359/95 relating merely to the tariff and statistical nomenclature.
The references made by that regulation to other rules of customs law are only declaratory, and the absence of such references
cannot possibly indicate that those rules are not applicable. The German working customs tariff constitutes merely a manual
intended to facilitate work.
Assessment by the Court
– Admissibility of the first plea in law
As regards the admissibility of this plea, it should be recalled, first, that according to settled case-law it follows from
Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules
of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the
appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, inter
alia, Case C‑41/00 P
Interporc
v
Commission
[2003] ECR I‑2125, paragraph 15, and Case C‑496/99 P
Commission
v
CAS Succhi di Frutta
[2004] ECR I‑0000, paragraph 48).
An appeal which merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of
First Instance, including those based on facts expressly rejected by that Court, does not satisfy the requirements to state
reasons under those provisions (see, inter alia,
Interporc
v
Commission
, paragraph 16, and
Commission
v
CAS Succhi di Frutta
, paragraph 49).
However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance,
the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could
not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would
be deprived of part of its purpose (see, inter alia,
Interporc
v
Commission
, paragraph 17, and
Commission
v
CAS Succhi di Frutta
, paragraph 50).
It should be recalled, second, that it follows from Article 225 EC and Article 58 of the Statute of the Court of Justice that
an appeal is limited to points of law. According to settled case-law, the Court of First Instance therefore has exclusive
jurisdiction to find the facts, save where a substantive inaccuracy in its findings is attributable to the documents submitted
to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted,
constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal (see, inter alia, Case
C‑136/92 P
Commission
v
Brazzelli Lualdi and Others
[1994] ECR I‑1981, paragraphs 47 to 49, and Case C‑470/00 P
Parliament
v
Ripa di Meana and Others
[2004] ECR I‑0000, paragraph 40).
However, it is settled law that, where the Court of First Instance has found or appraised the facts, the Court of Justice
has jurisdiction, pursuant to Article 225 EC, to carry out a review of the legal classification of those facts and the legal
inferences drawn from them by the Court of First Instance. As the Court of Justice has held on several occasions, such a classification
is a question of law which, as such, may be subject to review by the Court of Justice in an appeal (see, inter alia, Case
C‑19/93 P
Rendo and Others
v
Commission
[1995] ECR I‑3319, paragraph 26, and
Parliament
v
Ripa di Meana and Others
, paragraph 41).
In the present case, Biegi and Commonfood submit that the Court of First Instance infringed Community law by holding that
the errors on the part of the German customs authorities were detectable by the appellants. More particularly, they criticise
the Court for having thereby exaggerated, in the implementation of Article 220(2)(b) of the CCC, as interpreted by the Court
of Justice, the requirements of care of the economic operators concerned, and for having wrongly assessed the complexity of
the customs rules in question.
In those circumstances, the appellants contest the Court of First Instance’s answer to a question of the legal classification
of the facts, and thus submit a question of law to review by the Court of Justice.
The first plea in law is therefore admissible.
– Merits of the first plea in law
It should be noted to begin with, as the Court of First Instance observed in paragraph 56 of the judgment under appeal, that
two errors on the part of the German customs authorities, namely the issue of an erroneous version of the Eilverteiler and
the clearance of the goods imported by the appellants in July 1995 with the granting of the tariff preference without an import
licence being presented are not disputed in the present case.
Under Article 220(2)(b) of the CCC, the competent authorities are not to make subsequent entry in the accounts of import duties
if three cumulative conditions are satisfied. First, the failure to collect the duties must have been due to an error by the
competent authorities themselves; next, their error must be of such a kind that it could not reasonably have been detected
by a person liable for payment acting in good faith; and, finally, that person must have complied with all the provisions
laid down by the legislation in force as regards his customs declaration (see, by analogy, Case 161/88
Binder
[1989] ECR 2415, paragraphs 15 and 16; Joined Cases C‑153/94 and C‑204/94
Faroe Seafood and Others
[1996] ECR I‑2465, paragraph 83; order in Case C‑299/98 P
CPL Imperial 2 and Unifrigo
v
Commission
[1999] ECR I‑8683, paragraph 22; and order in Case C‑30/00
William Hinton & Sons
[2001] ECR I‑7511, paragraphs 68, 69, 71 and 72).
With respect to the second of those conditions, which is the only one at issue in the present appeal, it should be recalled
that, according to settled case-law, whether an error of the competent customs authorities was detectable must be assessed
having regard to the nature of the error, the professional experience of the operators concerned and the care which they exercised
(
Faroe Seafood and Others
, paragraph 99, and
Ilumitrónica
, paragraph 54).
As regards the nature of the error, it must be assessed in the light of the complexity or sufficient simplicity of the rules
concerned (see Case C‑187/91
Belovo
[1992] ECR I‑4937, paragraph 18, and
Faroe Seafood and Others
, paragraph 100) and the period of time during which the authorities persisted in their error (see Case C‑38/95
Foods Import
[1996] ECR I‑6543, paragraph 30, and
Ilumitrónica
, paragraph 56).
In the present case the Court of First Instance, in finding that the rules in question were not complex, relied in paragraph
63 of the judgment under appeal on the fact that the rules applicable to the use of the disputed Community tariff quota were
defined by the enactments on the opening and management of that quota and the detailed rules for applying it, namely Regulation
No 774/94, as amended by Regulation No 2198/95, and Regulation No 1431/94, Article 1 of which clearly provided that every
importation into the Community carried out in the context of that long-term tariff quota was subject to presentation of an
import licence.
It should be noted, however, that by Regulation No 1359/95 the Commission published a new version of the combined nomenclature
of goods applicable from 1 July 1995, Annex 7 to which sets out a list of the WTO tariff quotas to be granted by the competent
Community authorities. Column 6, headed ‘Other terms and conditions’, of Annex 7, set out in paragraph 7 above, does not contain
any remarks under order number 18 concerning the combined nomenclature of the goods at issue in the present case, whereas
in the same column it is stated, with reference to other goods, that ‘Qualification for the quota is subject to conditions
laid down in the relevant Community provisions’.
It follows from the above, first, that for the first time from 1 July 1995 the combined nomenclature resulting from Regulation
No 1359/95 showed separately the WTO tariff quotas to be granted by the competent Community authorities. That regulation,
the third recital in the preamble to which stated that it was necessary to implement, with effect from 1 July 1995, certain
tariff measures, in particular for agricultural products as defined within the framework of the Uruguay Round multilateral
negotiations, could therefore appear to be opening, on that date, new tariff quotas distinct from those which had been opened
as from 1 January 1994 by Regulation No 774/94. Moreover, it was only under Regulation No 2198/95 of 18 September 1995, subsequent
to the importations at issue, that the actual tariff quotas relating to the goods which were the subject of those importations
were opened retroactively from 1 July 1995.
Second, having regard to the remarks made in respect of other goods, the absence of any other information in the new combined
nomenclature on the conditions to which qualification for the quotas concerning the goods at issue in the present case was
subject could also give the impression that use of the tariff quotas concerned was not subject to any condition.
Finally, Regulation No 1359/95 did not contain any indication which could allow operators to consider that the information
in the annexes to the regulation was of purely declaratory value.
From those considerations, it must be concluded that Regulation No 1359/95 in itself contained an ambiguity as to the actual
scope of the points in it concerning the WTO tariff quotas, in particular in so far as it referred to goods coming under CN
codes 0207 41 40, 0207 41 41 and 0207 41 71. In particular, the combination of the heading and the various remarks in column
6 of Annex 7 to that regulation created a situation which was not sufficiently simple for it to be easily detectable from
an examination of them that, from 1 July 1995, use of the tariff quotas relating to those goods remained subject to the condition,
laid down by Regulation No 1431/94, of producing an import licence. The rules applicable in the present case may thus objectively
be described as complex (see, for example,
Ilumitrónica
, paragraph 57).
That description thus follows directly from the content of Annex 7 to Regulation No 1359/95, which, only a few days before
the import operations at issue, showed the WTO tariff quotas separately in the combined nomenclature for the first time. The
experience of the operators concerned in the field of trade in the goods in question cannot thus be taken into account in
the present case to consider that they could easily have detected the error in the Eilverteiler. That error was moreover committed
by the highest German customs authorities themselves, who, when amending their working tariff to take account of Regulation
No 1359/95, omitted to state that the importation of the goods covered by the above codes was subject to production of an
import licence. That error was also not corrected until several weeks after the publication of that document, following the
approaches made by the operators, in appropriate manner, to those authorities to make sure that their importation operations
were in order. In that respect, those operators cannot be criticised for not having shown the care required of them on the
ground that they did not apply in writing to the competent authorities before carrying out the importations at issue.
It follows from all the foregoing that the Court of First Instance was wrong to consider that the errors on the part of the
customs authorities were not of such a kind that they could not reasonably be detected by the appellants. The latter are therefore
correct in submitting that the Court of First Instance erred in law by making such a classification and by holding as a consequence
that the second of the cumulative conditions laid down by Article 220(2)(b) of the CCC was not satisfied in the present case.
The judgment under appeal must accordingly be set aside on that ground, without it being necessary to consider the appellants’
other plea in law.
Substance
In accordance with Article 61 of the Statute of the Court of Justice, since the state of the proceedings so permits, it is
appropriate to give final judgment on the appellants’ claim for annulment of the contested decisions.
In the light of the above considerations, it must be concluded that, in order to justify, by the contested decisions, the
subsequent entry in the accounts of import duties in the disputes between the appellants and the German customs administration,
the Commission was wrong to consider that the circumstances of the cases did not disclose any error of the German customs
authorities not detectable by an operator acting in good faith within the meaning of Article 220(2)(b) of the CCC.
It follows that the appellants’ plea of infringement of that article must be upheld. The contested decisions must therefore
be annulled, without it being necessary to consider the other pleas in law.
Costs
Under Article 69(2) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 118, the unsuccessful
party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Biegi and
Commonfood have applied for the Commission to be ordered to pay the costs and the Commission has been unsuccessful, it must
be ordered to pay the costs.
On those grounds, the Court (Sixth Chamber) hereby:
1.
Sets aside the judgment of the Court of First Instance of the European Communities of 17 September 2003 in Joined Cases T‑309/01
and T‑239/02
Biegi Nahrungsmittel and Commonfood
v
Commission
;
2.
Annuls Commission Decision C (2001) 2533 of 14 August 2001 (REC 4/00) in so far as it orders the subsequent entry in the accounts
of import duties payable by Peter Biegi Nahrungsmittel GmbH in the amount of DEM 218 605.64;
3.
Annuls Commission Decision C (2002) 857 of 5 March 2002 (REC 4/01) ordering the subsequent entry in the accounts of import
duties payable by Commonfood Handelsgesellschaft für Agrar-Produkte mbH in the amount of DEM 222 116.06;
4.
Orders the Commission of the European Communities to pay the costs.
[Signatures]
–
Language of the case: German.